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Lessons in dealing with an ‘equal opportunity’ harasser

published in McAfee & Taft EmployerLINC | August 16, 2016

A new opinion released by the Tenth Circuit provides practical tips to employers dealing with multiple employee complaints alleging generalized harassment and/or discrimination throughout the workplace.

Animal shelter scene of ‘real-life soap opera’

For approximately 10 years, plaintiff Karen Bird worked for the West Valley City, Utah, animal shelter. Approximately a year after she was hired, Kelly Davis, director of operations for West Valley City’s Animal Services Division, promoted Bird to manager of the animal shelter. During the course of Bird’s employment, the animal shelter environment turned sour. Various employees engaged in baseless arguments and confrontations and exchanged passive-aggressive remarks throughout the day. The West Valley City human resources department received constant employee complaints and dealt with high employee turnover. The Tenth Circuit Court of Appeals characterized the animal shelter environment as a “real-life soap opera.”

In HR investigations performed in response to various employee complaints throughout Bird’s tenure, various employees noted that Bird was “degrading in her talk.” Another employee noted that the employees “are all afraid to express an opinion or complain about something or make suggestions because if [Ms. Bird] does not like it we all pay. We just quit bringing issues up to keep peace.” Bird’s direct supervisor, Mr. Davis, was also the subject of many employee complaints, with nine women (including Bird) complaining to the human resources department that Davis was “always yelling, bullying, and slamming,” and that he “told the girls they think too much, they worry about their feelings too much.” Bird also stated that Davis “treats women different than men because women complain more,” and that he was “a 100% bully in the way he treats others.”

The human resources manager herself noted that Davis had a “serious anger management issue that interfered with his ability to be an effective manager,” and that he did not like “to take counsel from a woman.” In reviewing the many employee complaints, however, the HR manager concluded that “probably almost every employee of the shelter had complained to her about Mr. Davis, and the complaints were the same across the board for men and women.”

The conflict between Bird and Davis reached its boiling point when a newspaper article was published about a botched euthanization attempt at the animal shelter and threatened additional stories regarding upcoming mass euthanizations. Davis believed Bird, a very vocal critic of the shelter’s policy to euthanize animals to relieve overcrowding, to be the source of that negative press, as she was one of the few employees to have knowledge of the upcoming euthanizations. Bird denied that she was the newspaper’s source, and simultaneously filed a complaint with human resources, stating that she could no longer handle Davis’ belittling, bullying and harassing conduct. Importantly, Bird did not initially allege gender discrimination or otherwise suggest that her gender motivated Davis’ allegedly abusive/harassing conduct.

Complaint leads to HR investigation, then termination

Approximately a week after Bird filed her complaint, Davis issued her two letters of reprimand regarding her unauthorized use of overtime – the first formal discipline that she had received in 10 years of employment at the animal shelter. In response to Bird’s complaint, the HR manager conducted an investigation of the entire animal shelter. The interviewed employees revealed mixed feelings regarding Davis, but the comments regarding Bird’s conduct were much more negative, including multiple examples of insubordinate conduct. Based on this investigation, the department director determined that Bird, not Davis, had violated various shelter policies by her insubordinate conduct and her “failure to be courteous or cooperative with the public or fellow employees.” After a due process meeting, West Valley City terminated Bird’s employment.

Shelter manager sues city and supervisor

Following her termination, Bird sued West Valley City and Bird, alleging that she had been discriminated against and harassed on the basis of her sex in violation of federal law and that she had been terminated in violation of the First Amendment because shelter management (wrongly) believed that she had leaked information to the press regarding euthanizations. The district court granted defendants’ summary judgment motion, concluding that Bird’s discrimination/harassment claims must fail because she could not establish a breach of contract claim, could not provide sufficient evidence that she had been discriminated against because of her gender, and she could not establish that she had engaged in any constitutionally protected speech. Bird appealed to the Tenth Circuit Court of Appeals.

Practical tips for dealing with harassment allegations

In a lengthy opinion affirming the majority of the district court’s ruling, the Tenth Circuit identified several key points that employers should keep in mind when dealing with chronic employee complaints or investigating harassment claims:

  1. A company’s employee handbook policies and procedures cannot be deemed to be implied-in-fact contracts, as “a clear and conspicuous disclaimer…prevents employee manuals or other like material from being considered as implied-in-fact contract terms.” In this case, the disclaimer specifically noted that “policies and procedures stated…in other personnel statements” could not constitute a contract.
  2. In analyzing a hostile work environment claim, the “severity and pervasiveness” of an alleged harasser’s conduct is only relevant to the extent a plaintiff can demonstrate “severe and pervasive harassment based on gender.”
  3. Proximity in time between a harassment complaint and a disciplinary action taken against the complainant does not, by itself, create a question of fact that precludes summary judgment. It is “relevant” to a plaintiff’s attempt to show that the reasons for termination were pretextual, but not “sufficient” to establish that pretext.
  4. A plaintiff must allege specific examples of gender-based harassment to survive summary judgment. Conclusory statements such as “the men don’t work as hard but never get in trouble for it” or “girls worry about their feelings too much” are insufficient to create a genuine issue of fact sufficient to defeat a summary judgment motion.
  5. A plaintiff must allege knowledge of gender-based statements during his or her employment in order to rely on such statements as evidence of a hostile work environment.

What employers should do

  • Conduct prompt and thorough investigations of all employee complaints of harassment and/or discrimination. Ensure that similarly situated employees generally receive similar disciplinary actions, unless documented circumstances justify a harsher or lesser disciplinary action.
  • Review handbooks, policies and procedures pertaining to equal employment opportunity, harassment and discrimination and have clear policies addressing appropriate conduct and communication in the workplace. Ensure that you have a disclaimer stating that the policies and procedures in the handbook and in other personnel statements do not constitute a contract with the employee or any third party.

Bird v. West Valley City, 2016 WL 4183957 (10th Cir. August 8, 2016)

Although not discussed in this article because it only applies to public employers, the Tenth Circuit remanded to the district court the issues of whether West Valley City believed that Ms. Bird may have discussed its euthanization issues with the press, whether that belief factored into its decision to terminate Ms. Bird’s employment, and any potential First Amendment ramifications of these issues.