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West v. Tyson Foods, Inc., No. 08-6516 (6th Cir. Apr. 15, 2010); Pardo-Kronemann v. Donvan, No. 08-5155 (D.C. Cir. Apr. 16, 2010)

| Apr 16, 2010 | Daily Developments in EEO Law |

Employers have been pursuing an argument in sex (and other) harassment cases that liability cannot attach to the company if an employee complains only to lowest-level figure in the anti-harassment reporting chain. But the Sixth Circuit rejects the suggestion in this unpublished decision, affirming a $1.18 million award for a five-week employee at a chicken processing plant. In the D.C. Circuit, Judges Tatel (writing for the panel, reversing summary judgment) and Williams (in dissent) expend 43 pages in a Title VII retaliation case picking over whether HUD failed to properly frame its legal argument in the district court.

West v. Tyson Foods, Inc., No. 08-6516 (6th Cir. Apr. 15, 2010): Those familiar with harassment law know that liability is generally assessed under Title VII not for the harassment itself, but for the employer’s failure to arrest it. The degree of culpability (and exposure to punitive damages) depends in substantial part on how the plaintiff’s supervisors responded to the conduct.

Ms. West worked in an enclosed assembly line. After several weeks of enduring persistent catcalls, name-calling, and one especially foul act (described in full in the opinion), she approached her direct supervisor (named Parks), as stated in the company’s anti-harassment policy. The supervisor’s reaction was a classic, from the HR perspective of what-not-to-do:

“The supervisor in charge of the line, Cory Parks, noticed West and [trainer] Stokes talking and West crying, approached them, and asked West what was wrong. West testified that she told Parks what she had told Stokes, and also told him about the comments, stares and wolf whistles from co-workers she had endured since she started working there. West testified that she mentioned Ramirez and Sapeda by name to Parks, and that she also pointed out some other men whose names she did not know, but who had engaged in the harassing activity. West testified that Parks’ initial reaction was to tell West ‘don’t take it offensive; that’s just how they treat their women over there,’ and then ‘well, you know, you are hot,’ after which both he and Stokes laughed. When they realized West was not laughing, however, Parks ‘got serious also and promised [West] that he would see to it that it was resolved, and he asked [West] not to go to [human resources (‘HR’)], that he wanted to resolve it first, and he promised that he would get to the bottom of it.'”

In fact, neither Parks nor Stokes reported West’s complaints, and after two weeks of enduring addition al harassment, she stopped reporting to work. The company terminated her for job-abandonment. During her out-placement, she told an HR employee about all she had endured. She was assured that even though she was no longer employed at Tyson, that the company would investigate, but no investigation commenced until after West filed an EEOC charge.  At trial, instructed under Title VII and the Kentucky Civil Rights Act, the jury “awarded $750,000 for past and future mental distress ($500,000 for past, $250,000 for future), found that West had been constructively discharged, awarded her $65,818.29 in back pay and $64,545 in front pay, and awarded $400,000 in punitive damages.” Allocating the verdict between federal and state law, the judge affirmed the award except for capping the punitive award per 42 U.S.C. § 1981at $300,000.

The panel affirms the judgment in its entirety, over a plethora of objections to the trial and alleged legal error. In particular, the panel rejects Tyson’s argument that it was entitled to judgment as a matter of law because West did not complain to anyone other than Parks and Stokes:

“Tyson argues that no jury could reasonably find it culpable for creating a hostile work environment because there was insufficient evidence that it knew or should have known of the harassment that took place after West was relocated to a different position in the line. This argument too must fail because there was ample evidence that Tyson knew or should have known of the sexual harassment that West reported to Parks and that was inadequately addressed. . . . Parks was a supervisor, and an employee’s supervisor was listed as one of the persons through whom an employee could report sexual harassment under Tyson’s policy. . . .

“Tyson likens its position to that of the employer in Parkins v. Civil Constructors of Ill., 163 F.3d 1027 (7th Cir. 1998), claiming that West should have complained to other management personnel when she received no response from Parks, and since she did not, Tyson cannot be deemed to have had the requisite knowledge. However Parkins is distinguishable. In Parkins, the court held that where an employee had not received any resolution of her sexual harassment claims two years after making them, it was unreasonable of her not to report them through other channels. Id. at 1038. In the instant case, the time between West’s initial complaint and her decision to quit was only a matter of weeks, and a large portion of this time was covered by the two-week period Tyson’s policy told her to expect for an investigation. There was also evidence that it would not be unusual for West not to know if an investigation was taking place because of Tyson’s concern for confidentiality.”

Pardo-Kronemann v. Donvan, No. 08-5155 (D.C. Cir. Apr. 16, 2010): In this case, the plaintiff, of Cuban heritage, was an entry-level attorney at HUD. In 1998-99, he filed EEO complaints against the agency. “He also asked Howard Glaser, counselor to HUD Secretary Andrew Cuomo, about a possible detail away from HUD. In a subsequent letter, Glaser noted that Pardo-Kronemann had requested a one-year detail and that, upon his return, he sought reinstatement ‘preferably to the . . . Office of International Affairs or the . . . Finance Division [of OGC].'” A one-year detail to Inter-American Development Bank (IDB) was granted.

Thereafter, “Pardo-Kronemann sought a second detail, this time to the Inter-American Investment Corporation. When HUD said no, Pardo-Kronemann took approved leave without pay from December 2000 to February 2001. During that time, he continued working on a handbook for fostering mortgage markets in developing nations that he had begun while on detail at IDB.”

OGC, allegedly dissatisfied with Pardo-Kronemann’s work, ordered his transfer out of that agency to the Office of International Affairs (OIA). “According to record evidence, HUD officials. . . made the transfer decision without consulting Pardo-Kronemann and over the objection of the Deputy Assistant Secretary in charge of OIA, Shannon Sorzano, who was instructed to ‘write a position description and find something for [Pardo-Kronemann] to do.’ Sorzano Aff. ¶ 5, Nov. 9, 2002. OGC and human resources officials subsequently rewrote that job description ‘to ensure that the duties did not reflect performance of any legal work.’ Id. ¶ 15.”

The plaintiff alleged that this transfer, and a subsequent suspension for failing to report to the new job, was retaliation for his prior national-origin complaints. The district court granted summary judgment.

The D.C. Circuit panel unanimously concludes that the suspension did not constitute retaliation, but split over the transfer to non-legal duties. The dividing line was whether the action was “materially adverse” under the standard of Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006). According to the majority, the action was materially adverse because it deprived plaintiff of professional duties that he had prior to his one-year detail, i.e., practicing law. The dissent contends, instead, that for the year or more before Pardo-Kronemann was transferred to OIA, the plaintiff was working on non-legal matters (the handbook), and so the transfer (measured against his then-current duties) was not materially adverse.

The majority faults the dissent, contending that HUD itself failed to make that argument until well late into the appeal:

“[The dissent] compares Pardo-Kronemann’s new position at OIA not to his position at OGC, but to his pre-transfer, temporary work on the IDB handbook. Finding his work on the handbook similar to his work at OIA, the dissent concludes that no reasonable jury could find the transfer adverse. That, however, is not HUD’s argument. Instead, as we indicate above, HUD compares Pardo-Kronemann’s OIA position to his OGC position as a whole, including not just the handbook, but also the office in which Pardo-Kronemann worked and the legal work he did before the detail. . . .

“HUD argued neither that the handbook is the proper basis for comparison nor that we must disregard the fact that immediately before the transfer, Pardo-Kronemann maintained a position in OGC. Pardo-Kronemann, moreover, did not ‘fudge[] the matter,’ Dissenting Op. at 5. Instead,
throughout his district court brief, Pardo-Kronemann’ compared his OIA job to his OGC position generally, arguing ‘that ‘removing an attorney like Pardo-Kronemann from his position as an attorney qualifies as an ‘adverse action,””

The dissent considers unprecedented the idea that the employee should be able to point to position held previously in the organization as the base-line for measuring material adverseness: “In the end, my colleagues offer no colorable answer to the question their approach begs: why would we ask whether a transfer left an employee worse off not vis-à-vis where he was when it happened, but instead vis-à-vis a position he had long since departed at his own request? As far as I am aware, no case in this court or any other, published or unpublished, has ever framed its Title VII ‘adverse action’ analysis as a function of the latter rather than the former inquiry.”

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