Disclaimer: This is an entirely fictional account, created to relieve the writer of the usual dry restrictions of technical writing and to relieve you, the reader, of the misery of reading it. After all, employment litigation is about people and their stories..
Discrimination: Bet the odds or stock the shelves, that is the question.
Algis stocked the shelves and checked out customers at the local supermarket chain. Gordon was not overly sophisticated in matters of social courtesy, but he had a basic respect for all people, a trait taught to him by his Lithuanian mother, Lina. Lina immigrated here when she was a child and raised Algis as a single mother. Algis grew up with stories of how men at her mother’s work harassed her. He wasn’t about to let that happen to the young women at the grocery store.
Gordon was Algis’ supervisor. Gordon was married, overweight, and gruff. He saw himself as quite charming, despite complaints about his body odor. He became a store supervisor just a year earlier. Algis had worked for the supermarket chain for almost 15 years and had seen various supervisors come and go, but Gordon was unique. Gordon showed a clear preference for the young women workers whom he mocked and rewarded with better hours and promotions if they returned his attention. But some of the women resented Gordon’s extra attention. They complained to each other that Gordon’s “teasing” was often sexually offensive and seemed to become more sexually explicit over time. The women were also upset that some of the women who accompanied Gordon became his “favorites” while being denied pay raises or promotions.
Algis watched all of this interaction between Gordon and the women from a distance. The women didn’t include him in their conversations about Gordon, but he could see for himself what Gordon was doing, and it reminded him of the men Lina had described at the dinner table. He felt the need to report on Gordon’s behavior. Should he confront Gordon directly? he wondered. He decided to report Gordon to the store manager. The store manager, following company policy, took the matter to the Division of Human Resources, which investigated and, not surprisingly, found no sexual harassment, but did report some “inappropriate behavior” and gave Gordon a slap that entered his personal file as a “first warning”.
Discrimination in the words of Walter Scott.
“Oh, what a tangled web we weave when we first practice to deceive!”
The Human Resources investigator had promised Algis confidentiality, but revealed to Gordon that Algis was the accuser. Gordon for a while pretended not to know, and for several months “lay low” to avoid detection on his new mission to get rid of Algis. His opportunity came when he found an expired product on the shelves that Algis had been unable to remove or replace. Gordon prepared a lengthy “report” that included references to public health and the store’s reputation, warning Algis that one more mistake would result in termination. A few weeks later, Gordon took the expired product from the storage room and late one night, when no one was looking, he removed the current labels and replaced them with the expired items. The next day, he did an inspection of the store with Algis and several other employees, Gordon “discovered” the expired product, blamed Algis, and proceeded to report the violation to the store manager, with a recommendation for dismissal.
The store manager then contacted the regional manager, who reviewed the facts and determined that the termination was justified, so he was terminated. In the Company’s chain of command, the store supervisor could not terminate employees without the review and approval of the store manager, regional manager and human resources manager. The three in the Algis case found cause to terminate.
Defenses Against Discrimination
So when Algis sued the Company for unlawful retaliation, the company raised a number of defenses, including:
- Algis was not retaliated against because the decision makers were not the subject of her earlier “hostile work environment” complaint and did not know about the alleged harassment or that Algis had complained.
- Algis was fired for a good cause.
- The long period of time between the complaint and the dismissal was in itself proof that the dismissal was not caused by retaliation.
The Company was so convinced that it could win on these defenses that it filed a motion for summary judgment to have the Algis case dismissed as a matter of law. But Algis’ attorney raised several cases that convinced the court to let the case go to jury trial:
Reeves v. safeway stores inc. (2004) 121 Cal. App. 4th 95, 114; Dejun v. Upper cut (2008) 169 Cal.App.4th 533 and Staub v. Proctor’s Hospital (2011) 562 US 411.
Algis maintained that these cases allowed his case to proceed on the premise that while Gordon was the only person motivated to retaliate, he influenced others with his false information. The court agreed, following the “cat’s paw” doctrine. That doctrine is basically that if there are good and bad actors in the termination decision process, the decision will be considered completely bad if the bad actor influenced the outcome.
Discrimination test and time
On the issue of the timing of the decision, Algis’s attorney threw the full range of cases before the court holding that timing is sometimes, independently, sufficient evidence that the dismissal was caused by a retaliatory motive. Of course, the shorter the time, the more likely the inference of causality, but there is no external limit set by the cases. The U.S. Supreme Court has explicitly held that a time limit beyond the deadline is not necessary to support a finding of causation, but in the particular case then before it, it found that twenty weeks (5 months) was too much time. Clark County School District. v. breed, 532 USA at 237-74. In Thomas vs. City of Beaverton (9th Cir. 2004) 379 F.3d 802, 812, seven weeks did not preclude determination of a causal link even without other evidence of causality. Alas, in this uncertainty, only this is certain: “Come what may, time and hour run through the hardest day.” [Shakespeare, Macbeth].
Consequences of discrimination
Algis survived summary trial, and with yet more fight to come, he obtained a specific jury finding that retaliation for his reporting of what he believed to be a “sexually hostile work environment” was a “substantial motivating factor.” on his dismissal. He helped a bit when Algis’ attorney presented shocked video footage showing Gordon had made the “expired product” exchange the night before the store inspection. Algis’ attorney received the time-stamped digital recording from one of the store’s quieter employees who had put up with Gordon’s antics for too long. From “All’s Well That Ends Well,” he left this final quote: “Love all, trust a few, do no wrong to any.”