Retaliation/Whistleblower

The #MeToo movement has brought many things to light over the last year along with a lot of questions about what is considered sexual harassment and what to do about it. If you are interested in learning more about these issues, Lapin & Leichtling, LLP will be hosting a Lunch & Learn on March 19, 2019. We’ll be talking about how to recognize and respond to sexual harassment in the workplace. Lunch is free and space is limited, so please RSVP if you would like to attend.

Date: March 19, 2019

Time: 12:00 – 1:00 p.m. We will be starting promptly at 12 p.m.

Location: Lapin & Leichtling, LLP, 255 Alhambra Circle, Suite 1250, Coral Gables, FL 33134. Visitor parking is available on the ground floor of the parking garage behind the building or on the street.

RSVP and Questions: AJanderson@LL-Lawfirm.com or (305) 569-4100.

The Fourth Circuit Court of Appeals in Ray v. International Paper Company, released on November 28, 2018, overturned a lower federal court’s decision to dismiss Tamika Ray’s sexual harassment, hostile work environment, and retaliation claims against her employer, International Paper Company, for lack of sufficient evidence to support her claims. The FourthCircuit found Ms. Ray had presented sufficient evidence to survive summary judgment and to allow a jury to decide her claims.

Tamika Ray worked as a “bundler’ and then promoted to the position of “operator” at International Paper Company, which manufactures and distributes packaging boxes. Johnnie McDowell was Ms. Ray’s supervisor in both positions. One year after Ms. Ray began working, Mr. McDowell started asking Ms. Ray to engage in sexual activity and offered her money in exchange for those sexual acts, in addition to making several overtly sexual comments to her. On one occasion, he grabbed her thigh while the two were alone in his office. Several years after the conduct began, Ms. Ray reported it to two other supervisors, but asked that they not report to higher authorities for fear of retaliation. When Mr. McDowell found out that Ms. Ray had complained about his conduct, he informed Ms. Ray that she could no longer perform voluntary overtime work before the beginning of her shifts, for which she would get paid time and half. This voluntary overtime work represented a significant portion of her income.

When a supervisor, such as Johnnie McDowell, is the harasser and the harassment culminates in a “tangible employment action,” an employer like International Paper Company is strictly liable. Tamika Ray had to show that action taken against her was “tangible,” by demonstrating

that any action taken against her was ‘tangible,’ such that the action constituted a ‘significant change in employment status,’ and that there was ‘some nexus’ between the harassment and the tangible action taken.”

The Fourth Circuit held that the opportunity to work voluntary overtime that was taken away from her could constitute a tangible employment action. The Court also recognized that Mr. McDowell was responsible for the decision to eliminate Ms. Ray’s voluntary overtime work, creating a sufficient nexus between the ongoing harassment and the decision to deny voluntary overtime work. The Seventh Circuit overturned the lower court’s decision, which had dismissed Ms. Ray’s claim because of lack of sufficient evidence that the harassment culminated in a tangible employment action.

As to Ms. Ray’s retaliation claim, the Fourth Circuit also held that she had sufficient evidence to show that she suffered an adverse employment action after having reported the harassment to other supervisors, and that a jury reasonably could determine that Mr. McDowell retaliated against Ms. Ray after learning she had complained about him to other supervisors. Thus, there was enough evidence for a jury to reasonably find that International Paper Company was strictly liable for Mr. McDowell’s acts.

If you have been the victim of workplace sexual harassment perpetrated by a supervisor, and have experienced retaliation for reporting the misconduct, you should discuss your story with an attorney who can advise you of your legal rights. Please let us know if we can help.

A new lawsuit involving non-lawyer employees at Dentons, the world’s largest law firm, reiterates that there is no area of society immune from sexual harassment issues, and that a company’s response to allegations against an employee deserves as much scrutiny as the underlying behavior. Above The Law and the ABA Journal Blog outline the allegations leveled by Kruanli Parekh, a Business Development Specialist, against Alton Delane, the Managing Director of Dentons’ Venture Technology Group.  Law.com and Bloomberg’s Big Law Business Blog also have reports.

Allegations of Inappropriate Touching and Vulgar Language

Parekh’s Complaint alleges that Delane treated her as a sex object, using vulgar language, trying to draw her in to sexual conversations during late night calls, and touching her legs and buttocks without her consent. The Complaint even offers a bullet-point list of explicit allegations against Delane, while noting that he generates significant business for Dentons and is treated as a partner. Not surprisingly, alcohol is alleged to have played a part in Delane’s alleged-behavior.

Dentons, which just a few months ago dealt with allegations made against a partner while at a firm that merged with Dentons, issued a statement explaining that it placed Delane on administrative leave upon first learning of the allegations, and that it will take appropriate action upon conclusion of an internal investigation.  Parekh’s Complaint, however, alleges that Dentons initial response was far from robust. She claims that when she complained to her supervisor, she was told not to discuss the matter with anyone, which she characterizes as the firm’s effort to silence her and discourage her from seeking outside counsel. Parekh attributes the response—and the environment which enabled Delane’s alleged behavior—to a lack of female representation among the firm’s leadership. There are just three women on Dentons’ 34-member global board, and two on its 20-member global management team. For its part, the firm noted in its statement that five women serve on its 16-member U.S. board.

Whether Dentons responded appropriately or not will be borne out as the case progresses. Above The Law notes that Parekh’s allegation that she was told,

do not discuss this with anyone else inside or outside the firm,”

could be part of a prudent direction if given in the context of a request to wait until the firm concluded its investigation. Parekh’s lawyer told Bloomberg that the firm knew about the allegations for months, and only took action once Parekh sought outside counsel.  What is clear, however, is that even though companies can’t control for every employee’s behavior, they can control their response.  And society is paying attention.

Immediately after graduating from law school, Carl began working as a law clerk for Judge Jorge Martinez. Carl loved his job, which enabled him to watch civil and criminal trials, perform research and draft proposed legal opinions, provide recommendations to the judge, and meet other judges, law clerks and prominent lawyers in the community. After a few months, Judge Martinez introduced Carl to one of his colleagues, Judge Martha Stone, to whom Carl was immediately attracted. Much to Carl’s surprise, the attraction turned out to be mutual, and after consuming a few drinks and spending considerable time together at a fundraising event, Carl and Judge Stone began dating. Initially the relationship was extremely positive. The mutual attraction was both physical and intellectual. The two discussed cases and legal issues together, and Judge Stone was impressed with Carl’s abilities. But after a few months, the love affair turned sour. Judge Stone believed Carl was secretly seeing someone else, and an ugly side of her emerged. Judge Stone decided not only to end her relationship with Carl abruptly, but to make his life as miserable as possible.

The Harassment Begins: Unwanted Touching and Pictures Posted in the Bathroom

Whenever Judge Stone spoke to Judge Martinez and Carl was within earshot, Judge Stone asked how Judge Martinez could manage his caseload in the absence of any competent support. She said she knew of at least a dozen other recent law graduates far more qualified for Carl’s job. On several occasions after chatting with Judge Martinez, Judge Stone would leave Judge Martinez’s chambers, enter Carl’s office, and get extremely close to Carl, brushing up against him in a way that he felt was inappropriate and intended to intimidate. One day, outside the men’s restroom, Carl found a photograph of himself he remembered had been taken by Judge Stone. Under the photograph was an added caption, “We Who Labor Here Seek Only Truth. Carl: We Don’t Want Your Tiny Hands Anywhere Near Our Underpants”. From that point forward, the judges and judicial staff shunned Carl. One day when Judge Martinez was away from his chambers, Judge Stone came in and begged Carl to get back together with her, on the condition that he promised to be faithful to her. Carl tried to be polite, but explained that he had moved on, and was uncomfortable resuming the relationship in light of recent events. Judge Stone stormed out of Judge Martinez’s chambers without a word. Later that week, Judge Martinez started treating Carl dismissively, unlike ever before, finding fault with every piece of Carl’s research and writing, and began ridiculing every one of his recommendations. Carl’s dream job was now a nightmare.

Carl is Terminated After Complaining to Human Resources

Carl reluctantly complained about Judge Stone’s harassment to human resources. The human resources manager listened politely at first, but then disclosed that Judge Stone had previously complained about Carl, claiming that he was sexually harassing her. The manager asked if Carl really expected he would be believed, and suggested that he resign voluntarily. Shocked, Carl left discouraged, but vowed he would fight on. How could he ever be an effective lawyer fighting for the rights of others, if he couldn’t even stand up for his own rights? Carl refused to quit, and was promptly terminated. He retained a lawyer, and brought an action claiming he was exposed to a hostile work environment, and that his termination was retaliation for having complained about Judge Stone.

When Can Harassment After a Failed Intimate Relationship Constitute Actionable Workplace Harassment Under Title VII?

To establish a claim of hostile work environment sexual harassment under Title VII, the employee must allege and prove that the harassment was based on the employee’s sex. The mere fact that an intimate relationship gone wrong results in harassment by one co-worker against another in the workplace, does not in itself turn sex-neutral harassment into actionable sexual harassment. Rather, courts often find that harassment by a co-worker is not considered to be based on sex when it arises from a failed relationship. On the other hand, a prior failed relationship between an accused harasser and an alleged victim does not insulate the harasser from a finding of sexual harassment. A teacher who harassed a fellow teacher following a failed intimate relationship, by making threatening overtures toward the teacher’s wife and son, verbally and physically harassing the teacher in front of colleagues and students, for example, did not constitute actionable sex discrimination under Title VII, because it was motivated not by the teacher’s male gender, but by his former lover’s contempt following their failed relationship; the male gender was merely coincidental. Succar v. Dade County School Bd., 229 F.3d 1343 (11th Cir. 2000).

In contrast, when an employee was terminated because she reasonably believed it was a retaliatory discharge because she was the victim of harassment that was at least partly sexual in nature, she had a viable Title VII claim against the employer. The harasser’s brushing up against the employee in a way that appeared sexual and made her uncomfortable, and soliciting her to reinstate their previously intimate relationship, was sufficient to provide her with an objective belief that she was the victim of gender-based actionable sexual harassment. Lipphardt v. Durango Steakhouse of Brandon, Inc., 267 F.3d 1183 (11th Cir. 2001).

In Carl’s case, he likely has enough to pursue a claim for retaliation under Title VII for reporting sexual harassment, particularly because Judge Stone sought to reinstate their intimate relationship, posted the photo of Carl with a sexually demeaning caption, and brushed up against Carl in a sexual and intimidating manner. Even though Carl did not work directly for Judge Stone, she was in a position of considerable power relative to Carl, similar to a case against a judge in Massachusetts that was recently filed and led to the judge’s resignation. Have you experienced sexual harassment that resulted from what began as a consensual relationship? If so, we may be able to help.

What is the line between an uncomfortable situation at work and sexual harassment at work?

An employee who believes he or she is the victim of workplace sexual harassment must subjectively perceive the harassment as sufficiently severe and pervasive to alter the terms and conditions of employment, and the subjective perception must be objectively reasonable. This means that a judge or jury will listen to your story, view it from the perspective of a reasonable person in your position, and take into consideration all the circumstances to decide whether a hostile work environment existed.

Florida Law Gives Guidance

In a 2010 Florida case, Grogan v. Heritage NH, the court found that a business office manager who believed she had been a victim of workplace sexual harassment actually did not have a claim because a “reasonable person” in her position would not have considered the supervisor’s conduct so severe or abusive that it would interfere with her employment. The business office manager had accused her supervisor of following her to and from work. She believed her supervisor wanted a romantic relationship and that he made excuses to be near her and to call her at home. The supervisor gave her a good evaluation that helped her obtain a promotion with better pay. But when she received from a higher authority a disciplinary action report for being loud and disrespectful at a staff meeting, she asked the supervisor about applying for another position, and the supervisor helped her update her resume. The supervisor then arranged an interview for the position she wanted to leave. When she found out, her supervisor went to her house and waited in the parking lot for her. They spoke in her back patio where the supervisor apologized for setting up an interview. The next day, the supervisor sent her flowers with a note signed by the company saying, “I’m sorry…I still want you around as B.O.M. for a long time.” The business office manager was terminated after she lodged a complaint with human resources and after an investigation that showed she was upset because of her disciplinary issues. Human resources had concluded that her sexual harassment complaints against her supervisor had been malicious.

The business office manager in this Florida case failed to establish what is called a “prima facie” case of sexual harassment and retaliation. The Court found that the supervisor never made any sexual advances, or in any way obstructed her ability to perform her job.

We Can Help

Perhaps you are in a situation at work with a supervisor or co-worker that makes you feel uncomfortable. You should speak with human resources about the situation to attempt to correct it. Either way, you should feel free to discuss your situation with an attorney to make sense of whether there is a claim for sexual harassment. We are here for guidance.

It has been over a month since Sports Illustrated broke the story of the history of sexual harassment within the Dallas Mavericks’ organization. Since then, the team has hired outside counsel to investigate its culture, and brought in a new CEO who has committed to changing that culture going forward. Now, a new report from Deadspin, based on interviews with former and current employees, shows the important role that workplace culture plays in enabling sexual harassment.

A Real Life Animal House

The stories in the SI report are sadly predictable: the now-former President and CEO of the team once openly suggested that a female subordinate was going to be gang-banged over the weekend, and openly propositioned women for sex; at least one employee was warned, “don’t get trapped in an elevator with him.” A male employee in ticket sales was known for watching pornography at his desk. And in one instance, an employee allegedly dropped a used condom outside an office bathroom, which the head of human resources picked up with a paper towel. SI quotes one employee describing the office as a “real life Animal House.”

Deadspin’s interviews shed light on how this culture persisted for so long: employees were under constant pressure to perform, and there was a feeling that management was either unwilling or unable to do anything about the culture. One former employee described the job as

like being married to a Hollywood star, knowing he was abusive emotionally and physically to you, but you stayed with him because he’s a star.”

In the case of the porn-watching employee, Deadspin reports that employees felt they had no choice but to ignore it because the employee had a long tenure with the team, was known for bringing in a log of money, and, perhaps most importantly, was seen as close with the powerful people above him, who were known for caring only about how many tickets their employees sold. Reports of sexualized comments were dismissed as “talking shop.” And in perhaps the most widely-discussed revelation, the team allowed an accused-domestic abuser to remain with the team, even after he was arrested for alleged abuse of one woman, and was widely suspected of abusing a coworker whom he was dating.

When the Office Culture Protects the Harassers

Above all, the team’s handling of the abuse and harassment allegations sent a message to female employees that they were “just there to protect the men.” Sexual harassment persisted while male employees were given multiple chances. And the physical environment didn’t help. Many employees worked in a completely-open office space, meaning that everyone knew when someone was screamed at, belittled, or harassed. One employee stated that she was initially shocked by the abuse, but felt like she had to look the other way to keep her job.

As the #metoo and #timesup culture movement continues to evolve, it is stories like this that will help us understand how we got here, and how we can improve. In the case of the Mavs, the office culture played a critical role in enabling sexual harassment. Management looked the other way, or even participated in the harassment, intimidating victims and would-be whistleblowers alike into silence. It is in such a situation that an attorney can be a vital resource to a victim or whistleblower. We owe our clients a duty of confidentiality, and can also provide an objective analysis of the situation and possible remedies. If you have been a victim of or witness to sexual harassment in the workplace, don’t hesitate to reach out, especially when the office’s culture would encourage you to remain silent.