By: Carol G. Schley, Clark Hill PLC
In a recent decision, the U.S. District Court for the Eastern District of Michigan ruled that a former employee’s claim that she was terminated in retaliation for reporting workplace harassment could proceed to a jury trial, and denied the employer’s motion to have the case dismissed on summary judgment. While the details of the case are quite involved and are only briefly summarized below, the main focus of this article is on the lessons the case teaches.
In the case, Shelley Garrett was initially hired by DaimlerChrysler AG, but due to several corporate mergers and spin-offs, she later worked for Mercedes-Benz Financial Services. The employment application Ms. Garrett signed when she was first hired included a 6 months statute of limitations provision. During the course of her employment, Ms. Garrett had positive annual reviews.
In October 2013, Donald Berry became Ms. Garrett’s supervisor. In October 2014, Ms. Garrett reported to HR instances of “inappropriate behavior” by Mr. Berry, including him calling women “bitches.” The employer investigated Mr. Berry’s conduct, during which it was learned that he had slapped or placed his hand near the rear end of a female employee, Dawn Carpenter, during a work function. Mr. Berry was given a written warning about his conduct. Subsequently, several employees reported to the employer that Mr. Berry and Ms. Carpenter were involved in a romantic relationship. The employer asked Ms. Carpenter and Mr. Berry about this alleged relationship and they both denied it. The employer took them at their word and did not investigate further, although a much later investigation by the company’s attorney established that they were in a relationship and had lied when previously asked about it.
Subsequently, Mr. Berry’s employment was terminated and Ms. Carpenter became Ms. Garrett’s supervisor. There was evidence that several people in the office, including Ms. Carpenter, knew that Ms. Garrett had previously reported Mr. Berry’s alleged harassing conduct. In 2016, Ms. Garrett had a workplace disagreement with a co-worker, Lisa Sesny. As a result, Ms. Carpenter placed Ms. Garrett, but not Ms. Sesny, on a Performance Improvement Plan (“PIP”), which she successfully completed. After another workplace disagreement between Ms. Garrett and Ms. Sesny, the employer terminated Ms. Garrett’s employment. This decision was made after a meeting that included representatives of HR, senior management and Ms. Carpenter. While they considered issuing a written warning to Ms. Garrett pursuant to the company’s written policy, they determined, based upon input from Ms. Carpenter, that Ms. Garrett “was not going to change and that she was hurting team morale.” Ms. Garrett subsequently filed a lawsuit alleging she was terminated in retaliation for her reporting Mr. Berry’s harassing conduct.
There are numerous takeaways from the court’s 45 page decision in this case, including the following:
- Review your documents frequently and revise as necessary – When Ms. Garrett commenced employment, she signed an application that said she was required to assert any claims against “Chrysler Corporation or any of its subsidiaries” within 6 months. However, her employment (at least initially) was with DaimlerChrysler AG, and she never worked for Chrysler Corporation. Finding that “Daimler Chrysler AG was in a better position to avoid confusion about which entities the time bar applied to,” the court refused to apply the 6 month statute of limitations to Ms. Garrett’s claims. If the employment application Ms. Garrett signed correctly and broadly identified her employer, her claims may have been found to be time barred, allowing her employer to prevail on its summary judgment motion. This is a reminder that employers must frequently review its key employment documents to ensure they remain accurate in light of changing circumstances.
- When you investigate, do a thorough job – In deciding whether Ms. Garrett could proceed to trial on her claims, the court noted that the employer conducted only a superficial investigation into whether Mr. Berry and Ms. Carpenter were in a relationship. The court also noted that no investigation was conducted by the employer in connection with the allegations that Mr. Berry had touched or slapped Ms. Carpenter’s rear end during a work function. Both of these situations should have triggered a thorough investigation by the employer to determine their veracity and to ensure appropriate corrective action, if necessary.
- Document your decisions – The court took note that the employer’s stated reason for terminating Ms. Garrett (her alleged disruptive behavior and inability to get along with co-workers) conflicted with the positive performance reviews she received throughout her 16 years of employment. The court also noted that the employer failed to document the reasons for Ms. Garrett’s termination. Contemporaneous and thorough documentation of work-related decisions, especially when it involves employment termination or other adverse employment actions, is necessary to help prove that the employer’s decision was thorough, reasoned and lawful.
- Train and re-train your employees on your policies – A manager who participated in the decision to terminate Mr. Berry testified at his deposition that he did not know whether the company had policies regarding sexual harassment and retaliation or whether these issues were covered by Michigan law. The company also admitted that prior to Ms. Garrett’s complaint, it had never investigated sexual harassment, gender discrimination or retaliation. Employers must ensure that their managers and anyone else in a decision-making role are well-versed and periodically and thoroughly trained on company policies and the law regarding harassment and retaliation. Such employees need to be able to recognize employees’ complaints that may involve unlawful conduct, and must be able to know how to effectively investigate complaints, whether it’s the first complaint or the 100th complaint the company has received.
- Follow established policies with consistency – In deciding that there were issues of fact on whether the employer’s termination of Ms. Garrett constituted unlawful retaliation, the court noted the employer failed to follow its progressive discipline policy. That policy provided that an employee with behavioral issues be provided a verbal warning, a written warning and a final written warning prior to being terminated. In this case, Ms. Garrett never received a written or final warning. In addition, while Ms. Garrett was placed on a PIP by Ms. Carpenter, her co-worker, Ms. Sesny, who engaged in similar conduct, was not. These inconsistencies, according to the court, were “evidence of pretext for the jury to consider.”
The overall lesson this case teaches is that when tricky issues arise in the workplace that may implicate anti-discrimination laws, it is always best to proceed with the advice and assistance of legal counsel.
Carol G. Schley is a member of the Detroit SHRM Legal Affairs Committee and an attorney at the law firm Clark Hill PLC. She can be reached at email@example.com or (248)530-6338.
Detroit SHRM encourages members to share these articles with others, inside and outside their organization, as long as its name and logo, and the author’s information, is included in the re-post of the article. September 2018