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If you don’t have anything nice to say…

published in Oklahoma Employment Law Letter | March 1, 2012

By Charles S. Plumb

When faced with unfair accusations by an employee, it’s tempting for employers or supervisors to speak out against the allegations. After all, it’s frustrating to an employer when an employee makes claims it believes are false. As tempting as it might be, making public over-the-top comments in response to a charge or lawsuit can get an employer in hot water, as the city of Syracuse, New York, recently learned.

Getting cross with the employee

Therese Lore was a longtime member of the Syracuse Police Department. She had risen to the position of public information officer, acting as a liaison between the police department and the media. However, she was removed from her position as public information officer and transferred on several occasions to less favorable job assignments. She filed a grievance under the union contract with the city complaining that her removal and transfers were based on her gender and were discriminatory.

Copying others’ pay stubs

The police department left biweekly paychecks for its officers in a box that was accessible to all members of the department. When employees searched the box for their own paycheck, it wasn’t unusual to see other employees’ checks. The paychecks included a pay stub itemizing regular pay and overtime pay.

When Lore was looking for her own paycheck, she discovered other officers were receiving more overtime assignments. She photocopied three sergeants’ pay stubs and filed a grievance complaining of unfairness in the distribution of overtime. While her grievance was pending, she filed gender discrimination and retaliation complaints with the Equal Employment Opportunity Commission (EEOC). Her EEOC complaint covered the job transfers and unequal distribution of overtime.

Lore’s arbitration hearing went forward while her EEOC charge was pending. At the hearing, she used the copies of the sergeants’ pay stubs as exhibits for her overtime complaint. The city’s attorney threatened her with criminal prosecution for copying the pay stubs but offered to forgo prosecution if she dropped her EEOC complaint and the grievances. Lore refused to withdraw either and was suspended for 10 days without pay for personal use of the police department’s copier.

When it came to Lore’s accusations, city attorney Rick Guy was outspoken to the media. His comments were reported by the electronic and print media, including public statements that:

  • Lore had been suspended;
  • she had copied other officers’ pay stubs; and
  • her accusations were intended to divert attention from her poor job performance.

Lore’s lawsuit

Lore filed a lawsuit against the city of Syracuse and a number of individuals, including Guy. She claimed gender discrimination and retaliation but also sought damages for pain, suffering, emotional distress, and injury to her reputation. At trial, she argued that Guy’s statements about her poor job performance were inaccurate. As evidence, she offered commendations and letters of praise she had received from the public, the chief of police, and the district attorney’s office. She testified that after Guy’s statements to the press, Syracuse police officers no longer wanted to associate with her. Further, Syracuse citizens had approached her and asked why she had stolen and copied other employees’ pay stubs.

At trial, the jury awarded $100,000 to Lore for damage to her reputation. The EEOC’s enforcement guidelines recognize that injury to character and reputation can result in an award of damages, and the court concluded that Lore’s testimony about Guy’s comments published by the media and the effects of his public statements supported the award. Lore v. City of Syracuse, Case Nos. 09-3772 and 09-4206 (2nd Cir., 2/2/12).

Think before you speak

Regardless of how tempting, it generally is a bad idea to comment in any great detail about an employee or personnel matters. You’re better off saving those comments and responses for the courtroom. At the very least, they should be made through the EEOC, not the media. Otherwise, you may face claims of damages to character and reputation, just as the city of Syracuse did in this case.