A Tool or a Fool for Discrimination?

DisclaimerThis is an entirely fictional account, created to relieve the writer of the usual dry restraints of technical writing and to relieve you the reader the misery of reading it. Employment litigation after all is about the people and their stories.

Discrimination: Staking the Odds or Stocking the Shelves, That is the Question.

Algis stocked shelves and checked out customers in the local supermarket chain store. Gordon wasn’t too sophisticated in matters of social grace, but he had a basic respect for all people – a trait taught to him by his Lithuanian mother, Lina. Lina immigrated here as a young girl and raised Algis as a single mother. Algis grew up with stories of how men at his mother’s work harassed her. He wasn’t about to let that happen to the young women at the grocery store.

Gordon was Algis’s supervisor. Gordon was married, overweight, and gruff. He viewed himself as quite the charmer, despite complaints of body odor. He became a store supervisor just a year earlier. Algis had worked for the supermarket chain for nearly 15 years and had seen several supervisors come and go, but Gordon was unique.

Gordon showed a clear preference for the young female workers whom he teased, and whom he rewarded with better schedules and promotions if they returned the attention. But some of the women resented Gordon’s extra attention. They complained among themselves that Gordon’s “teasing” was often sexually offensive, and seemed to become more sexually explicit with time. The women also resented that some of the women who went along with Gordon became his “favorites” while they were denied pay increases or promotions.

Algis watched all 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 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 Divisional Human Resources, who investigated, and not surprisingly, found no sexual harassment, but did report some “inappropriate behaviors,” and gave Gordon a hand slap that went into his personnel file as a “first warning.”

Discrimination in the Words of Walter Scott.

“O, what a tangled web we weave when first we practice deceiving!”

The Human Resources investigator had promised Algis confidentiality, but she disclosed to Gordon that Algis was the accuser. Gordon for a while pretended not to know, and for several months “laid low” to avoid being detected in his new mission to get rid of Algis. His chance came with he found expired products on shelves that Algis had failed to remove and replace. Gordon prepared a long “write-up” that included references to the public health and the reputation of the store and warned Algis one more error would result in termination.

A few weeks later, Gordon took the expired product from the storage room, and late one evening when no one was looking, removed current labels and replaced it with the expired items. The next day he did a store inspection with Algis and several other clerks, Gordon “discovered” the expired product, blamed Algis, and proceeded to report the infraction to his store manager, with a recommendation for firing.

The store manager then contacted the regional manager, who reviewed the facts and determined the firing was justified, and so signed off. In the Company’s chain of command, the store supervisor could not fire employees without a review and approval by the store manager, the regional manager, and the human resources manager. All three in Algis’s case found cause to terminate.

Discrimination Defenses

So when Algis sued the Company for unlawful retaliation, the company raised several defenses including:

    1. Algis wasn’t the victim of retaliation because the persons making the decision were not the subject of his earlier “hostile work environment” complaint, and they didn’t know about the alleged harassment or that Algis had complained.
    2. Algis was fired for good cause.

The long period of time between the complaint and the firing was itself evidence that the firing was not caused by retaliation.

The Company felt so strongly it could win on these defenses that it filed a motion for summary judgment to have Algis’s case dismissed as a matter of law. But Algis’s attorney raised several cases that persuaded the court to let the case go to a jury trial:

Reeves v. Safeway Stores Inc. (2004) 121 Cal.App.4th 95, 114; Dejung v. Superior Court (2008) 169 Cal.App.4th 533 and Staub v. Proctor Hospital (2011) 562 U.S. 411.

Algis contended these cases allowed his case to go forward on the premise that while Gordon was the only person motivated to retaliate, he influenced the others with his false information. The court agreed, following the “cats paw” doctrine. That doctrine is basically that if there are good actors and bad actors in the termination decision process, the decision will be deemed entirely bad if the bad actor influenced the outcome.

Discrimination Proof and Timing

On that matter of the timing of the decision, Algis’s attorney threw the gamut of cases before the court holding that time is sometimes independently sufficient proof that the firing was caused by the retaliatory motive. Of course, the short the time, the more likely the inference of causation, but there is no outside limit set by the cases. The U.S. Supreme Court has explicitly held that there is not necessary outside time limit to sustain a finding of causation, but in the particular case then before it, found that twenty weeks (5 months) was too long. Clark County School Dist. v. Breeden, 532 U.S. at 237-74. In Thomas v. City of Beaverton (9th Cor. 2004) 379 F.3d 802, 812, seven weeks did not preclude the finding of a causal link even without other evidence of causation. Alas, in this uncertainty, only this is sure: “Come what come may, time and the hour run through the roughest day.”

Discrimination Aftermath

Algis survived summary judgment, and with still more fight ahead, obtained a specific jury finding that the retaliation for his reporting of what he believed to be a “sexually hostile work environment” was a “substantial motivating factor” in his termination. It helped a bit when Algis’s attorney introduced surprising video footage showing that Gordon had made the “expired product” switch the night before the store inspection. Algis’s attorney received the digital time-stamped recording from one of the quieter female store clerks who had too long tolerated Gordon’s antics. From “All’s Well That Ends Well,” I leave this final quote: “Love all, trust a few, do wrong to none.”







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