COURT FINDS GENDER PLAYED NO ROLE IN PROFANITY-LACED CONFRONTATION AND EMPLOYEE TERMINATION

In Granger v. Graybar Elec. Co., No. 16-40165-TSH, 2018 U.S. Dist. LEXIS 167227 (D. Mass. Sep. 28, 2018), Michael J. Granger (“Granger”) filed a claim against his employer asserting gender discrimination, arguing that his termination was the result of gender bias. Granger worked both as a counter sales representative and in the employer’s warehouse. Granger generally had positive employee reviews in the years prior to his termination but had been disciplined for processing errors and initiating arguments with co-workers.

On June 1, 2015, Granger’s female supervisor belittled him regarding a customer service issue. On June 2, 2015, Granger approached the supervisor while she was alone in the employee breakroom and attempted to speak to the supervisor, but an angry and profane confrontation ensued. Granger referred to his female colleague as a “bitch” on multiple occasions during the confrontation. The supervisor asked that Granger leave the breakroom but he refused. Ultimately, two managers interceded and ended the confrontation. The female supervisor had to be physically restrained by the managers from going back after Granger and Granger alleged that the supervisor swore at him when the managers broke up the confrontation.

The managers immediately spoke to both employees, who each stated that Granger had called his colleague a “bitch” during the incident. The managers spoke with human resources and then immediately terminated Granger. The employer required that the supervisor undergo a “management counseling” for her actions during the confrontation.

Granger filed suit against the employer and alleged that the employer wrongly terminated him while only imposing minor discipline on his female colleague. The court found Granger’s termination appropriate because it was undisputed that he called his colleague a “bitch” several times during the altercation, and he had initiated the confrontation. The judge summarized the case by concluding, “Granger contends that in this case the record suggests that [the employer] was enforcing traditional notions of civility, which more easily tolerate a man yelling at another man or a woman making threats at a man than they do a man yelling profanities at a woman…. I disagree. The record suggests this was the case of an out of control, angry employee who acted in a highly inappropriate and unprofessional manner toward a co-worker and was terminated for that conduct.”

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EMPLOYER’S PROMPT ACTION LEADS TO DISMISSAL OF RETALIATION CLAIM

In Votolato v. Verizon New Eng., Inc., No. 16-cv-11663-DPW, 2018 U.S. Dist. LEXIS 169191, (D. Mass. Oct. 1, 2018), the district court granted an employer’s motion for summary judgment where an employee alleged retaliation for making a protected complaint. In January 2015, Dacio Votolato (“Votolato”) reported to her supervisor that a co-worker had engaged in behavior that could constitute sexual harassment. The employer, Verizon New England, Inc. (“Verizon”), suspended and ultimately terminated the harasser.

In her lawsuit filed against Verizon, Votolato claimed that her co-workers retaliated against her for complaining about the harasser.The alleged retaliation consisted of the following: Votolato claimed that her sexual harassment complaint was “public knowledge;” her colleagues gave her the “cold shoulder” and unfriended her on Facebook; and her colleagues subjected her to numerous “little slights,” such as dirty looks, letting the door slam in her face while entering the employer’s facility, and employees driving quickly past her in the employee parking lot. Co-workers also allegedly stated that Votolato was “sneaky.” While employed by Verizon, Votolato did not share any of the specific details regarding her allegations of retaliation with the employer nor did she name the employees who allegedly were treating her poorly.

Following the alleged retaliation, Votolato took a medical leave from Verizon. While on leave, Votolato posted on her Facebook page that she had been hurt by the harasser’s actions and was considering committing suicide. Verizon contacted Votolato because of her Facebook post and referred her to the company’s Employee Assistance Program (“EAP”). When Votolato did not respond to EAP, Verizon called local police and had them check on Votolato.

After Votolato used all FMLA time available to her, she returned to work. Votolato then started missing time from work but had no remaining FMLA leave. Verizon promptly disciplined Votolato for missing time out of work without adequate FMLA hours and eventually placed her on a six-month job-in-jeopardy status. After exhausting all leave time available to her, Verizon sent Votolato a letter providing that she could 1) request more leave; 2) request a reasonable accommodation to re-enter the workplace; 3) or return to work. Verizon noted that failure to respond to the letter could lead to termination. Votolato did not respond but Verizon did not immediately terminate her. Instead, Verizon sent Votolato another letter explaining she could apply for long-term disability benefits or pursue the options mentioned in its prior letter. Votolato again did not respond to Verizon but applied for long-term disability benefits, which were ultimately denied. Votolato then resigned her employment with Verizon and brought suit.

The court granted Verizon’s motion for summary judgment because Votolato could not show a constructive discharge. The fact that certain co-workers gave Votolato the cold shoulder, called her “sneaky” or unfriended her on Facebook did not individually or collectively amount to a hostile work environment. The court also noted that supervisors took prompt action when confronted with Votolato’s claims of retaliation and the employer showed that Votolato was uncooperative with the employer’s request for information about alleged retaliation. Last, Votolato had no constructive discharge claim because she failed to engage with her employer about returning to work after her leave.

This was a complicated fact pattern, but the employer’s management and human resources were able to defend against Votolato’s claims because they acted promptly, followed up with the complaining employee and documented all communications with Votolato. The case is an example of the multiple issues that employers may address when faced with a sexual harassment claim. The employer must address the harassment, ensure that its employees do not retaliate against the complaining employee and navigate any leave requirements if the victim of sexual harassment takes time out of the workplace. Here, Verizon quickly investigated the harassment and terminated the harasser. It then met with Votolato and sought information concerning the alleged retaliation. When the employee failed to provide information, Verizon documented this fact. Last, Verizon provided the employee with leave and was open to several proposals regarding the employee’s return to work from leave. The employee did not respond to multiple communications from Verizon and could not establish that she had been constructively discharged.


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Employment Law Overview

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