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Friday, May 25, 2018

Employee Caught Lying Wins Retaliation Claim for Employer


Wennoa Peebles, an accounts payroll clerk, claimed that her boss, CEO of the Greene County Hospital Board located in Eutaw, Alabama, would repeatedly demean her and other women in the office, calling them “opossums” and at one point saying Peebles’ “brain was so small it could fit up a gnat’s behind,” according to a Federal District Judge’s Order issued Thursday.  Peebles also claimed he made sexually charged remarks, including commenting on the size of one woman’s breasts and buttocks.

Peebles’ counsel had sent a letter to the CEO and the Board Chairperson, stating that Peebles had (1) previously reported to them “the deteriorating working conditions to which she is subjected” and (2) “experienced discrimination and retaliation at the hands of the CEO and others within management.” The letter also stated that counsel had begun the process of involving the Equal Employment Opportunity Commission (EEOC).

But the Judge on Thursday held that Peebles was fired for giving board members’ personal email addresses to a debt collector, not because she complained to the EEOC about being sexually harassed by her boss.  The Judge held that many of the actions or statements Peebles cited had nothing to do with her being a woman, and those that did were not severe or pervasive enough to create a hostile work environment based on her sex, and that her sex discrimination complaint was to be thrown out because she was replaced by a woman.

In his Order the Judge discussed Peebles’ retaliation claim, ruling that she didn’t make out a prima facie basic case that the Hospital fired her for complaining, or cast doubt on its explanation for doing so. He noted Peebles was fired nearly three months after she complained to the EEOC, which is too long a delay to connect her complaint to the firing. And because the CEO, who made the decision to fire her, didn’t know about Peebles’ other complaints, he could not have been retaliating against her, ruled the Judge.

The court found that the Hospital had met its ‘exceedingly light’ burden in articulating a legitimate, nondiscriminatory reason for terminating Peebles. The Hospital claimed it fired Peebles because she violated a rule against giving out personal email addresses, and because she initially lied about doing so, noting that the debt collector said Peebles had given out the emails. Peebles offered nothing to rebut the hospital’s claim that it fired her for lying, the Judge held.


Common Sense Counsel: The case presents four teaching points for employers: 1) patience in not taking action against Peebles until more than 3 months after her protected action was fatal to her retaliation claim. The Eleventh Circuit Court of appeals has ruled in numerous cases that a three month time period extinguishes the essential causal connection between the protected conduct and retaliation event; 2) make sure you can articulate a legitimate, nondiscriminatory reason for termination that will win the unemployment claim as your first skirmish with the ex-employee; 3) replacing an employee with one of the same sex, age, race, etc. will typically eliminate that claim; and 4) with regards to retaliation claims, ignorance of the claim is bliss.

Tommy Eden is a partner working out of the Constangy, Brooks, Smith & Prophete, LLP offices in Opelika, AL and can be contacted at teden@constangy.com or 334-246-2901 and blog at www.alabamaatwork.com with link to full court opinion.


Click here to access the Wennoa Peebles v. Greene County Hospital Board case.

Friday, May 11, 2018

Painstakingly Slow Harassment Investigation Sends Case to Jury

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Keoshal Hankins worked as a sales associate a Dollar General store in Mississippi. In a sexual harassment lawsuit filed on her behalf by the Equal Employment Opportunity Commission (EEOC), Hankins claimed that she was subjected to repeated sexual harassment by her store manager, which included multiple propositions for sex and unwanted and offensive physical contact. Hankins alleged that she reported this harassment to the assistant store manager, as well as to lead sales associate who, in turn, relayed her complaints to Dollar General’s district manager and a senior human resources manager, according to a judge's order.

Dollar General’s response was “painstakingly slow”, eventually terminating the store manager approximately four months after initiating its investigation into his conduct.  By that time, Hankins had been fired, the judge’s order noted.

Dollar General sought to summarily dismiss of Hankins’ EEOC lawsuit, contending that she could not show that the manager’s sexually harassing conduct was “severe or pervasive.” In responding to Dollar General’s arguments that the alleged harassment in this case was insufficiently severe, Hankins provided the court a list of twenty-six rude, crude & profane comments, propositions, text messages, and physical touching, not appropriate to be printed in a public newspaper. A co-worker saw one of the store manager’s sexually profane text messages to Hankins, and two other workers in the same store had previously reported problems with the same store manager, the order noted.

Faced with this rather overwhelming response, the judge observed that Dollar General did not contest the factual basis for any of Hankins’ twenty-six items in its reply brief, and it simply reiterated, in a footnote, its position that the harassment allegedly suffered by Hankins was neither “severe nor pervasive.” On Tuesday, a federal judge in Oxford, Mississippi found the evidence sufficient to send Hankins to a jury.

Common Sense Counsel: The only thing worse than not reacting to complaints of workplace harassment is a painstakingly slow investigation. When you conduct your next respectful workplace training, consider these seven tips: 1) include all protected classifications; 2) provide “suitable for work” examples; 3) explain various reporting channels; 4) make sure you are using a legally compliant policy; 5) investigate promptly under the attorney client privilege; 6) take prompt remedial; and 7) take prompt corrective action. And last, a valuable lesson one of my law school professors taught me, “don’t get your honey where you get your money,” for anyone thinking that a workplace romance is a good idea.

Click Here to read the full case. 

Tommy Eden is a partner working out of the Constangy, Brooks, Smith & Prophete, LLP office in Opelika, AL and can be contacted at teden@constangy.com or 334-246-2901.

Wednesday, May 2, 2018

"Printer-Gate" Backfires on Charter



Seven Charter Communications workers at Charter’s call center in Louisville, Kentucky were each given a Hewlett-Packard (HP) computer printer by Charter’s Louisville office administrative assistant, according to a recent court decision. Each testified that they believed her distribution of the printers was authorized by Charter management. Charter, however, considered each employees’ acceptance of the printers to be a violation of its policy against removing company property without authorization, and it terminated most of the employees involved.

Image result for bad printer clip artApproximately one month after the employees were fired, a Charter Human Resources Manager gave a PowerPoint presentation during a Charter leadership conference. On a slide with the heading “Leadership and Judgment,” he referred to “Operation Green-light, Buzz-kill, Printer-gate.” He then encouraged employees in the training to “act with Integrity and Character.” The notes for his oral presentation accompanying the slide stated: “Let’s get the elephant in the room out in the open, how many of you have heard of these Operation codes for things that weren’t right! All examples of poor judgment. Not bad people, people we know and love but they made the wrong choices.” Green-light referred to an incident in which a Charter employee allegedly used a company credit card for personal benefit and was terminated as a result. Buzz-kill involved the alleged sale of illegal drugs on Charter property by Charter employees; those employees were also terminated.

Upon hearing about the Charter Human Resource Manager’s training presentation, the fired employees sued Charter for defamation on the ground that Charter made false statements alleging misconduct relating to the distribution of HP ink jet printers. They contend that the use of the term “Printer-Gate,” particularly in conjunction with references to employee theft and drug-dealing, implied that their actions were criminal.  Charter sought a summary dismissal on the grounds that “Printer-Gate” is not defamatory and that any implication of wrongdoing was true.

In Kentucky, defamatory language is broadly construed as language that tends to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with them. Additionally, in Kentucky a person need not be specifically identified in the defamatory matter itself so long as it was so reasonably understood by the person’s friends and acquaintances familiar with the incident. Under the law, certain statements are actionable per se, meaning that they give rise to a conclusive presumption of both malice and damage, including false accusations of theft.     

Recently, a federal district judge in Kentucky ruled that the fired employees involved in “Printer-Gate” had presented sufficient evidence to put their cases before a jury on their defamation claims against Charter.

Common Sense Counsel: One of the most dangerous fired employees is one to whom the ex-employer delivers the ammunition. Creating a post-discharge training session, based on fired employee alleged misconduct, is just begging for a lawsuit. These 4 Tips are taken straight from my Litigation Landmines Training. When an Employee leaves remember; 1) Keep Situation Confidential; 2) Even with Peers; 3) Respect Privacy; and 4) Refer Questions to Human Resources.

Kruti Desai v. Charter Communications

Tommy Eden is a partner working out of the Constangy, Brooks, Smith & Prophete, LLP offices in Opelika, AL and West Point, GA and can be contacted at teden@constangy.com or 334-246-2901 and blog at www.alabamaatwork.com with link to full court opinion.