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CHAPTER 7 – SEXUAL HARASSMENT

Article 7-7

OHIO: PREGNANCY DISCRIMINATION – EMPLOYER IMPROPERLY TERMINATED AN EMPLOYEE WHO NEEDED TIME OFF FOR MEDICAL REASONS, EVEN THOUGH SHE HAD NOT WORKED FOR A FULL YEAR AND THEREFORE HAD NO SICK LEAVE OR OTHER LEAVE

On March 11, 2009, in Nursing Care Management Of America, Inc., d.b.a. Pataskala Oaks Care Center v. Ohio Civil Rights Commission, the Court of Appeals for 5th District, Licking County, 181 Ohio App.3d 632, 2009-Ohio-1107, held that the employer violated Ohio law by terminating a pregnant employee.

Tiffany McFee is a licensed practice nurse, who was hired by the Care Center on June 9, 2003. The employer authorized employees, after reaching 1 year of employment, with up to 12 weeks of leave. Ms. McFee was with the Care Center for 8 months, and on Jan. 26, 2004 she presented a doctor’s note that she was medically unable to work due to pregnancy-related swelling, and requested leave until six-weeks after the birth of her child.

Ms. McFee gave birth on Feb. 1, 2004. The Care Center, however, terminated her three days later since she was not entitled to any leave until 1 year of employment. The Director of Nursing called her on Feb. 25, 2004 and offered her a full-time, day-shift job; McFee never returned the call.

McFee filed a charge of pregnancy discrimination with the Ohio Civil Rights Commission, which after an investigation found "probable cause" that Care Center violated Ohio Rev. Code 4112. The matter was heard before an Administrative Law Judge (ALJ), who recommended that the Care Center did not violate the law. The Civil Rights Commission rejected the ALJ’s recommendation. The Care Center appealed to the Court of Common Pleas, where a judge reversed the Commission and held that the Care Center did not violate the law. The Commission appealed to the 3-judge Court of Appeals.

The Court of Appeals held:

"[W]e find that the commission interpreted and applied the relevant statutes in a lawful and proper way, and its final order should therefore be affirmed."

In addition, the Court looked at the Commission’s regulations. Ohio Administrative Code 4112-5-05(G) also explicitly provides that termination of an employee "disabled due to pregnancy" is prohibited, even if the employer provides no maternity leave or insufficient maternity leave.

The Court concluded: "In this case, it is undisputed that Pataskala Oaks had no maternity leave available to McFee at the time of her pregnancy disability. Therefore, the commission is correct in relying on provision (G)(2)."

Legal Lessons Learned: Ohio Fire & EMS Departments should not terminate a pregnant employee who medically need time off, even if she has no sick leave, without careful review with legal counsel.

Article 7-6

OHIO: SUPREME COURT OF OHIO - INVESTIGATIVE REPORT BY ATTORNEY IS NOT PUBLIC RECORD UNDER OHIO PUBLIC RECORDS ACT

On April 21, 2009, in State ex rel. Toledo Blade Co. v. Toledo-Lucas Cty. Port Authority, the Court held (7 to 0) in a per curiam opinion (not issued by individual judge) that an investigative report prepared by a law firm may not be released to the newspaper or others. This is a useful decision for Fire & EMS departments seeking to conduct a sensitive internal investigation.

In July 2008 the Mayor of Toledo informed the Port Authority and other governmental entities operating as a consortium to receive federal funds, that their administrator had been engaged in an extramarital affair with the female lobbyist for the consortium. There was a concern that the administrator may have improperly funneled money to the lobbyist.

The Port Authority directed their outside law firm to conduct an investigation. The Chairman of the Port Authority anticipated that some staff employees would be reluctant to speak openly and candidly unless the confidentiality of the investigation could be assured.

The investigative report was delivered to Port Authority board members. Each received a numbered copy and was advised that it was confidential and could not be shared with others. On August 1, 2008, the administrator was terminated by the Board.

The Toledo Blade newspaper sought a copy of the report, which the Board refused based on attorney-client privilege. The Board did share documents the attorneys had reviewed in preparing the report. The newspaper filed a mandamus action directly with the Supreme Court of Ohio, seeking the report and attorneys fees. A sealed copy of the report was provided to the Court.

The Court held that the report is not a public record. The Court rejected the newspaper’s claim that they should receive the factual portions of the report, and only the legal advice section should be private.

"The Blade’s argument lacks merit. ‘In Ohio, the attorney-client privilege is governed by statute, R.C. 2317.02(A), and in cases that are not addressed in R.C. 2317.02(A), by common law.’ " [Case citations omitted.]

"[W]e conclude that the factual investigation conducted by attorney Gregory was incident to or related to any legal advice that the attorneys hired by the port authority would give concerning the mayor’s allegations of misconduct by the port authority [administrator]."

The Court recognized the importance of keeping the report confidential:

"As the uncontroverted evidence established, because port authority staff members knew that Grisby was an attorney, they felt free to speak openly and candidly and with the understanding that their comments and the investigation were serious legal matters that could carry serious legal consequences."

Legal Lessons Learned: Fire & EMS Departments that wish to investigate sensitive matters should consider retaining legal counsel to conduct the investigation.

Article 7-5

U.S. SUPREME COURT – SEXUAL HARASSMENT – EMPLOYEES WHO COME FORWARD DURING AN INTERNAL INVESTIGATION OF A SUPERVISOR ARE ALSO PROTECTED FROM RETALIATION

On Jan. 26, 2009, in Crawford v. Metropolitan Government of Nashville and Davidson County, Tennessee, the Court held (9 to 0) that not only are employees protected from retaliation if they make an internal complaint of sexual harassment, they are similarly protected in answering questions about a supervisor during an internal investigation. Full opinion can be read at:

http://www.supremecourtus.gov/opinions/08pdf/06-1595.pdf.

Justice Souter [who retired at the end of the Term] wrote the opinion:

"In 2002, respondent Metropolitan Government of Nashville and Davidson County, Tennessee (Metro) began looking into rumors of sexual harassment by the Metro School District’s employee relations director, Gene Hughes. When Veronica Frazier, a Metro human resources officer, asked petitioner Vicky Crawford, a 30-year Metro employee, whether she had witnessed ‘inappropriate behavior’ on the part of Hughes… Crawford described several instances of sexually harassing behavior: once, Hughes had answered her greeting, ‘Hey Dr. Hughes, what’s up?,’ by grabbing his crotch and saying ‘[Y]ou know what’s up’; he had repeatedly ‘‘put his crotch up to [her] window’; and on one occasion he had entered her office and ‘grabbed her head and pulled it to his crotch.’" [Footnotes and citations omitted.]

The employer argued that Ms. Crawford didn’t complain of harassment because she too participated in workplace inappropriate comments:

"Metro suggests in passing that it was unclear whether Crawford actually opposed Hughes’s behavior because some of her defensive responses were ‘inappropriate,’ such as telling Hughes to ‘bite me’ and ‘flip[ping] him a bird.’ Brief for Respondent 1–2 (internal quotation marks omitted). This argument fails not only because at the summary judgment stage we must ‘view all facts and draw all reasonable inferences in [Crawford’s] favor,’ Brosseau, 543 U. S., at 195, n. 2, but also because Crawford gave no indication that Hughes’s gross clowning was anything but offensive to her."

Two other employees were also fired:

"Two other employees also reported being sexually harassed by Hughes. Although Metro took no action against Hughes, it did fire Crawford and the two other accusers soon after finishing the investigation, saying in Crawford’s case that it was for embezzlement. Ibid. Crawford claimed Metro was retaliating for her report of Hughes’s behavior and filed a charge of a Title VII violation with the Equal Employment Opportunity Commission (EEOC), followed by this suit in the United States District Court for the Middle District of Tennessee. Ibid."

Congress has two anti retaliation provisions in Title VII:

"The Title VII anti retaliation provision has two clauses, making it ‘an unlawful employment practice for an employer to discriminate against any of his employees . . . [1] because he has opposed any practice made an unlawful employment practice by this subchapter, or [2] because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.’ 42 U. S. C. §2000e–3(a). The one is known as the ‘opposition clause,’ the other as the "participation clause," and Crawford accused Metro of violating both."

Both the trial judge and the 6th Circuit Court of Appeals dismissed Vicky Crawford’s lawsuit because she had not made any internal complaint [not "opposed any practice’] and because she was not participating in an EEOC investigation when she spoke out. The Supreme Court disagreed:

"The statement Crawford says she gave to Frazier is thus covered by the opposition clause, as an ostensibly disapproving account of sexually obnoxious behavior toward her by a fellow employee, an answer she says antagonized her employer to the point of sacking her on a false pretense. Crawford’s description of the louche goings-on would certainly qualify in the minds of reasonable jurors as ‘resist[ant]’ or ‘antagoni[stic]’ to Hughes’s treatment, if for no other reason than the point argued by the Government and explained by an EEOC guideline: ‘When an employee communicates to her employer a belief that the employer has engaged in . . . a form of employment discrimination, that communication’ virtually always "constitutes the employee’s opposition to the activity.’ Brief for United States as Amicus Curiae 9 (citing 2 EEOC Compliance Manual §§8–II– B(1).

In a footnote, the Court further explained:

"We have never suggested that employees have a legal obligation to report discrimination against others to their employer on their own initiative, let alone lose statutory protection by failing to speak. Extending the mitigation requirement so far would make no sense; employees will often face retaliation not for opposing discrimination they themselves face, but for reporting discrimination suffered by others. Thus, they are not ‘victims’ of anything until they are retaliated against, and it would be absurd to require them to ‘mitigate’ damages they may be unaware they will suffer."

Legal Lessons Learned: In internal investigations, both the complainant and others who offer supporting information are protected from retaliation. In the fire service, subsequent discipline of a "complainant" or an employee who confirms a complainant’s allegations must be thoroughly documented and independent of the initial investigation. Termination or other significant discipline of such "protected" employees should only be done after careful review with competent legal counsel.

Article 7-4

OHIO - FEMALE TOLEDO CAPTAIN AND TWO FEMALE FF CAN PROCEED WITH HOSTILE WORK ATMOSPHERE LAWSUIT – ALLEGED COMMENTS OF SENIOR OFFICERS – ARBITRATOR ALREADY REINSTATED TERMINATED CAPTAIN

 On July 18, 2008, in Captain Carla Strachura et al. v. City of Toledo, the Ohio Court of Appeals for the Sixth District, http://apps.co.lucas.oh.us/Courts/Appeals/DecisionsPDF/3763.pdf , held (3 to 0) that the gender discrimination lawsuit filed by three female FF was improperly dismissed by the trial judge, and should proceed to trial.

[Full article is in Larry Bennett's new book, "Ohio Fire & EMS Law – Officer Development" (7/2009); see details on placing tax deductible order at www.uc.edu/cas/firescience.]

Article 7-3

OHIO – WORKPLACE HARASSMENT OF HOMOSEXUAL – EMPLOYER FAILED TO TAKE ADEQUATE STEPS TO PREVENT IT AND MUST STAND TRIAL

 On June 29, 2007, in Barry P. Tenney v. General Electric, 2007 Ohio 3367, 2007 Ohio App. LEXIS 3114, the Ohio Court of Appeals for Trumbull County held that a homosexual employee at the GE Niles/Mahoning Glass Plant is entitled to a trial in his claim for intentional / reckless infliction of emotional distress since it appears that GE managers “allowed the actions to persist and accumulate over the years Tenney has been employed there.”

[Full article is in Larry Bennett's new book, "Ohio Fire & EMS Law – Officer Development" (7/2009); see details on placing tax deductible order at www.uc.edu/cas/firescience.]

Article 7-2

Ohio Civil Rights Commission – Pregnancy Discrimination – Light Duty

On June 26, 2007, the Ohio Civil Rights Commission refilled its proposed new pregnancy regulations that will impact every employer in Ohio, including Fire & EMS Departments. Under these new regulations, no employer in Ohio will be allowed to limit or alter a pregnant employee's duties (including pregnant firefighters / EMS personnel) without an “objective, verifiable safety justification.”

[Full article is in Larry Bennett's new book, "Ohio Fire & EMS Law – Officer Development" (7/2009); see details on placing tax deductible order at www.uc.edu/cas/firescience.]

Article 7-1

KANSAS – SEXUAL HARASSMENT – 315 POUND FIREFIGHTER RESIGNS BECAUSE OF HIS MALE CAPTAIN'S MISCONDUCT - CASE DISMISSED SINCE HE RESIGNED BEFORE GIVING FIRE CHIEF TIME TO INVESTIGATE

On September 26, 2006, a federal judge in Kansas, in Richard A. Beseau v. Fire District No. 1 of Johnson County, Kansas, Case No. 05-2162, 2006 U.S. Dist. LEXIS 69447, granted the FD's motion for summary judgment, since “the plaintiff did not consider the option of working for a supervisor other than [his] Captain. ” “The court has no reason to believe that a reasonable person would have considered this option to be intolerable or even to be a punishment for complaining about harassment.”

Richard Beseau, 6’2” tall and 315 pounds, was hired as a full-time FF on March 27, 2004, after having served as a volunteer for the prior year. He was assigned to a shift under a Captain that he had worked with in the past, who commonly used profane language, and crude, sexual jokes.

Beseau worked a 24-hour shift, where all the career FF were male; there were also 35 volunteers, with only one female. “It was common in the privacy of the station for firefighters to engage in cursing, jokes and sexual innuendo.”

Unfortunately for Beseau, he became the focus of his Captain's jokes and misconduct. The court wrote that it was not homosexual in nature, noting that both men were married, and the Captain had two children. For example:

• On Beseau’s second 24-hour shift, the Captain allegedly “jumped into plaintiff's bed and acted liked he was having sex with someone. This lasted for ten to 15 seconds. Plaintiff did not report this to anyone.”

• On May 11, 2004, the Captain asked Beseau if he was right or left-handed. When the FF told him he was right-handed, the Captain joked, he must “work out with your right hand.” The court wrote, by “work out” the Captain meant “masturbate” and the Captain made motions with his hand to simulate masturbation. Plaintiff did not report this to anyone.

• On June 8, 2004, the Captain told Beseau, “You think about me when having sex with your wife, don't you. I will be on your shoulder when you're having sex with your wife, I'll be telling you to go right or left.”

• On June 16, 2004, the Captain and Beseau took a tour of a county jail, and when some inmates commented on the 315-pound FF, his Captain said “I think the inmates like you. We should lock you in the cell with them so they can have sex with you.” The Captain also joked with a Deputy Sheriff, that Beseau “works out” when he goes home, and made a gesture to simulate masturbation.

• On June 23, 2004, the Captain touched Beseau's shoulder in a seductive manner and said, “ I am a touchy-feely type of guy.” Plaintiff told him to stop. Later that day the Captain told a volunteer to touch Beseau because he liked to be touched.

• The Captain's misconduct really upset Beseau; prior to leaving for work he would sometimes cry for 20 minutes.

The Fire Chief and Deputy Chief's office was in the same fire station where plaintiff was assigned. He finally told the Fire Chief he intended to resign, and for the first time informed the chief about the Captain's misconduct. The Chief urged him to take a couple of days off with pay to think about it, and promised to start an investigation, and to reassigned Beseau to another shift. Plaintiff returned in a couple of days and submitted his resignation.

The federal district judge dismissed the lawsuit, finding that Beseau failed to show that the Captain's conduct created such an abusive working environment to justify an “objective” person to resign. In order to establish a claim for constructive discharge, a “plaintiff must demonstrate that he or she explored options short of resignation or that such exploration would have been futile.”

Legal Lessons Learned: FDs with an effective internal complaint process can avoid liability if employees fail to complain; horseplay that goes over the line, particularly by an officer, must be prevented.

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