Here’s a case from the Eighth Circuit where the employer apparently handled the harassment complaint correctly, but a jury found (to the tune of over $300,000, with fees thrown in) that HR didn’t handle the follow-up retaliation so well. Also, the First Circuit reminds us of a gap in the ADEA remedial scheme.
Heaton v. The Weitz Company, No. 07-2851 (8th Cir. July 24, 2008): Heaton, with a mixed Latino and Italian family background, suffered repeated harassment from a union superintendent named Huber, who (according to the trial record) “instructed some of the Teamsters to go to Heaton, tell him he was a ‘fucking spic,’ and ask Heaton ‘if [Heaton] knew what a ‘[s]pic’ was.’ Other workers told Heaton they heard Huber say, ‘The only thing worse than having [his] daughter marry a fucking nigger would be to have [his] daughter marry a fucking [s]pic like that Ed Heaton.'”
Heaton complained about Huber to an HR representative named DeVries; another executive, Vice President Novy (a friend of Huber’s), investigated. After substantiating Heaton’s complaint, Novy gave Huber the choice that he could accept a demotion or take early retirement. Huber took retirement. So far, so good.
Then things began to unravel. Just a few weeks later, Heaton was told that the was fired because of a disagreement with a project manager named Henecke (another friend of Huber’s), but put immediately back to work when he accused the company of possible retaliation. Over time, he lost two of his direct reports and was then laid-off after this exchange: “Novy told Heaton that Novy was demoting Heaton to journeyman, or Heaton could choose to be laid off. Heaton asked why he was being demoted, and Novy told Heaton, ‘Things are catching up to you.'” DeVries did not investigate Heaton’s complaint that these actions were also retaliatory. “After the offer to work as a journeyman, management level positions opened up, but Heaton was not offered those positions. Finally, even though Heaton specifically alleged retaliation from Novy, DeVries assigned Novy to investigate the complaint.”
The jury found, and the court affirmed, that Heaton met his burden of proof on his retaliation claim. The panel rejected that argument that the passage of several months between the harassment complaint and the lay-off broke the chain of causation as a matter of law:
“In Heaton’s case, Weitz essentially asks us to determine the evidence fails to strongly demonstrate causation. We will not substitute our judgment for that of the jury when sufficient evidence exists for the jury to make a reasonable determination. [Citation omitted.] Weitz argues six months passed between the time of Heaton’s discrimination complaint and the time Heaton was laid off. But all was not well during this six month period. Only a few weeks after Huber was let go, a turf dispute arose between Heaton and Henecke, who used to work with Huber. The district court noted such disputes were ‘common in the industry.’ Even though such disputes were common, Novy (an admitted friend of Huber and his family) informed Heaton he was being terminated, and handed Heaton his last two paychecks. Heaton asked if he was being fired because of his discrimination complaint, and Novy promptly revoked the termination. Novy then demanded Heaton apologize to Henecke, even though Henecke was the one who called Heaton a “spic” during the dispute. Later, when Heaton was laid off, Novy told Heaton, ‘Things are catching up to you.'”
The court also affirmed a $25,000 punitive damage award, finding that the company’s failure to curb the retaliation vitiated its good faith defense: “Weitz argues it made a good faith effort to respond to the discrimination against Heaton. Weitz notes it responded quickly to Heaton’s original complaint against Huber, forcing Huber to take early retirement. Indeed, Weitz initially responded appropriately to Heaton’s complaint as to Huber’s improper remarks. Even though Weitz initially responded appropriately to Heaton’s complaint, its agents thereafter did not react appropriately. Novy and Henecke, both members of the management team, directly retaliated against Heaton, with Henecke calling Heaton a ‘spic,’ and Novy attempting to fire Heaton for the Henecke ‘spic’ confrontation, and then requiring Heaton to apologize to Henecke. Novy was plainly acting within the scope of his employment when he acted to terminate Heaton.”
Collazo v. Nicholson, No. 06-2678 (1st Cir. July 24, 2008): Reviewing summary judgment on the merits of a ADEA hostile work environment claim, the First Circuit affirms on an alternative ground — no available relief.
The facts are brief: “Collazo . . . contends that [his supervisor] Rivera threatened him and directed age-discriminatory remarks at him, leading Collazo to file four incident reports and two VA police reports. The last incident report, filed on April 23, 2003, discussed an incident that had occurred on April 16, 2003. Several of Collazo’s allegations of abuse were corroborated by Rivera’s coworkers and/or hospital patients in affidavits submitted by Collazo in opposition to the appellee’s motion for summary judgment.”
But Collazo wasn’t fired and didn’t lose any pay. There was no relief for pure humiliation, because the ADEA under 29 U.S.C. § 626(b) — modelled after the FLSA — provides money damages only for pecuniary losses. “Here, Collazo has made no claim for pecuniary benefits related to his job or any equitable relief. His claim is limited to compensatory damages for pain and suffering. Therefore, even if he could establish a hostile work environment claim based on the record before us, the damages he seeks are not available.” So the ADEA is where Title VII sex harassment claims were before the 1991 Act added compensatory and punitive damages. Something else, possibly, that Congress may want to look at when it next goes about refurbishing the federal civil rights laws.