Friday, July 29, 2016

Title VII’s reach to protect employees is co-extensive with breadth of employers’ retaliation


A recent case out of California demonstrates that Title VII’s anti-retaliation protections of employees are just as broad as some employers’ destructive sweep to get rid of “problem” employees. In Equal Employment Opportunity Commission v. Zoria Farms, Inc., the court on July 22, 2016, ordered Z Foods, Inc., (the successor corporation to Zoria Farms) to pay $1,470,000 in compensatory and punitive damages to several female employees who had been sexually harassed by two supervisors, and to male and female employees who were terminated after they either complained about the harassment or were merely related to the persons who had complained.

Title VII makes it “an unlawful employer practice for an employer…to discriminate against any individual with respect to [her] compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” “‘Discriminatory conduct includes harassment,’” Zoria Farms (quoting Meritor Savings Bank v. Vinson), when that harassment occurs because of sex.” Id. (citing Oncale v. Sundowner Offshore Servs.). An employer violates Title VII when it subjects an employee to harassment that constitutes a hostile work environment. A hostile work environment based on sex exists when there is unwelcome conduct that is based on the plaintiff’s sex, which is sufficiently severe or pervasive to alter the plaintiff’s conditions of employment and to create an abusive work environment, and which is imputable to the employer. Boyer-Liberto v. Fontainebleau Corp. In measuring the severity of the harassing conduct, “the status of the harasser may be a significant factor–e.g., ‘a supervisor’s [harassment] impacts the work environment far more severely than use by co-equals.’” Id. “‘…[A] supervisor’s power and authority invests his or her harassing conduct with a particular threatening character.’” Id. (quoting Burlington Indus., Inc. v. Ellerth).

In Zoria Farms, the court granted the EEOC’s unopposed motion for default judgment and found that the EEOC had set forth prima facie claims of sexual harassment. Over a two-year period, Rosa Mendez’s supervisor Martin Ramirez made inappropriate comments to her, such as how good she looked in pants, he dreamed about having sex with her, she had a beautiful body, he desired her breasts, he liked the way her breasts moved when she walked, he was imagining her naked, and he thought about what it would be like to have sex with her. Ramirez also inappropriately touched Mendez: he would walk by and brush up against her or stand next to her while rubbing up against her; he would come up from behind her and grab her buttocks or fondle her breasts. He also often propositioned Mendez, telling her that if she had sex with him, he would offer her a better employment position. Ramirez also sent Mendez to remote areas of the work facility so that he could further harass her. This terrified Mendez, as she had heard rumors that he had raped other female employees in similar, isolated areas. In these isolated areas, he grabbed her from behind with both hands. Mendez complained about Ramirez’s behavior to Martha Sanchez, the Human Resources Manager, and to Jill Brooks, the Plant Manager. Mendez told them that she refused to go to isolated areas because she knew Ramirez was going to try to sexually assault her. Rather than defend or protect Mendez, Sanchez and Brooks told her that she was being insubordinate for refusing to obey Ramirez’ orders, and subsequently wrote her up for being insubordinate. Mendez was not the only female employee whom Ramirez sexually harassed.

That Ramirez’s harassment altered the conditions of Mendez’s employment was unquestionably clear to the court: His conduct caused her to experience feelings of anxiety and stress, which led to her having difficulties sleeping and recurring nightmares. After her complaints to Human Resources and the Plant Manager went unanswered, her feelings of depression, sadness, anxiety, stress, and humiliation continued. She had to force herself to go to work. Her feelings of depression became so intense that she attempted suicide in October 2007.

Supervisor Francisco Guerra sexually harassed Rocio Guevara and other female employees. Guerra placed harassing telephone calls to Guevara, solicited her to go on dates with him, made numerous comments about her body, told her he was in love with her, offered to promote her if she went out with him, and leered at her. With regard to the other female employees, Guerra identified which of them were good at oral sex, discussed sexual positions, propositioned female employees with offers of promotion in exchange for sex, threatened their continued employment unless they acquiesced to his advances, leered at their buttocks, subjected them to unwanted touching, and enlisted other female employees to solicit female employees on his behalf.

The court found the two supervisors’ harassing actions were imputable to the employer because it utterly failed to take appropriate remedial action to stop the harassment after numerous employees complained of the harassment. An employer is “strictly liable for the supervisor’s harassing behavior if it ‘culminates in a tangible employment action,’ but otherwise may escape liability if two conditions are met: (1) the employer exercised reasonable care to prevent and correct any harassing behavior, and (2) the plaintiff unreasonably failed to take advantage of the preventive or correction opportunities the employer offered. Boyer-Liberto.

Not only did Mendez and Rocia Guevara complain about the sexual harassment, but numerous other male and female employees complained as well. In April 2008, Mendez and several of her co-workers participated in a meeting to talk to management (Human Resources Manager Sanchez and Plant Manager Brooks) about Ramirez’s conduct. Ramirez was thereafter terminated. Sanchez and Brooks assured the employees that they should not worry about losing their jobs.

In order to establish a prima facie case of retaliation under Title VII, a plaintiff must demonstrate that: “(1) she engaged in a protected activity under Title VII; (2) defendants were aware of the activity; (3) plaintiff was subject to an adverse employment action; and (4) there was a causal nexus between plaintiff’s protected activity and the adverse employment action.” Burt v. Maple Knoll Communities, Inc. An “adverse employment action ‘constitutes a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.’” Id. (quoting Burlington Indus., Inc.).  The causal connection can be established when the employer treated the plaintiff differently than similarly-situated employees, or when the adverse action was taken shortly after the plaintiff’s exercise of protected rights. Id.

In June 2008, Mendez and all of her co-workers who participated in the April 2008 meeting were terminated. Another employee, Maria Coronado, complained to Human Resources about Ramirez sexually harassing her and other female employees. On one occasion in 2007, she saw Ramirez trying to grab and kiss Mendez against her will. Upon seeing Coronado, Ramirez released Mendez, but he thereafter began criticizing Coronado’s work. Coronado was terminated after she participated in the April 2008 meeting with management to discuss Ramirez’s conduct.

Mireya Torres, another Zoria Farms employee, witnessed Ramirez harassing Mendez. She was upset about Ramirez’ conduct towards Mendez and attempted to limit the time Mendez had to spend alone with him. She attended the April 2008 meeting with management to discuss Ramirez’ conduct. A few weeks later, she was terminated.

Bacilia Barajas also worked at Zoria Farms and witnessed Ramirez harassing Mendez. He encouraged Mendez to complain to Sanchez about Ramirez’s harassing conduct, which Mendez did. Nothing was done about Mendez’ situation, though. Barajas also saw Ramirez harassing other female employees. When Ramirez became aware that Barajas had witnessed his behavior, Ramirez became more aggressive toward Barajas and assigned him more strenuous work. Barajas attended the April 2008 meeting and was shortly thereafter terminated.

The court found that the EEOC had sufficiently pled the retaliation claims, as employees had reported Ramirez’ and Guerra’s conduct to Human Resources and the Plant Manager. See Brooks v. City of San Mateo (reporting sexual harassment to supervisor constitutes protected activity), and were shortly thereafter terminated.

What is most interesting about this case is the extent to which Z Foods went to eradicate not only the complaining employees, but also employees who were related to the complaining employees. Title VII allows for third-party retaliation claims for plaintiffs who are within the “zone of interests” sought to be protected by Title VII. See Thompson v. North Am. Stainless, L.P. Title VII’s “zone of interests” includes employees, as the purpose of Title VII is to protect employees from their employers’ unlawful actions. Id. In Thompson, the Supreme Court held that a third-party retaliation claim under Title VII was properly made by an employee who was terminated after his fiancée filed a claim of discrimination with the EEOC against the same employer. The Court reasoned that “Title VII’s antiretaliation provision prohibits any employer action that ‘well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.’” Id. (quoting Burlington N. & Santa Fe Ry. Co. v. White). The Court in Thompson stated, “[w]e think it obvious that a reasonable worker might be dissuaded from engaging in protected activity if she knew that her fiancée would be fired.” Id. The Court declined to identify a fixed-class of relationships for which third-party reprisals are unlawful because “‘the significance of any given act of retaliation will often depend upon the particular circumstances.’” Id. (quoting Burlington).

In October 2008, Arnulfo Guevara reported Guerra’s sexual harassment of his sister Rocia Guevara to John Zoria, a manager with Z Foods. Zoria told Guevara to tell the women to find a way to submit a complaint against Guerra. Zoria then called Guevara back, asked him how long the harassment had been going on, then told Guevara not to say anything. In November 2008, Guevara was fired.
Carlos Garcia is Arnulfo Guevara’s brother-in-law, and also worked at Zoria Farms. In May 2009, the Assistant Plant Manager began asking Garcia questions about Guevara, and asked him whether he knew that Guevara had filed a charge of discrimination with the EEOC. In August 2009, Garcia was terminated. The court found that Garcia’s termination as a result of his association with Arnulfo Guevara was sufficiently pled to establish a third-party retaliation claim under Title VII and Thompson.

In awarding not only compensatory but also punitive damages against Z Foods, the court considered that it “did not have or did not enforce an anti-discrimination policy, failed to take action in response to numerous complaints, and permitted and ratified multiple violations of Title VII prohibitions on harassment and retaliation.” Z Foods. The court concluded that, “[a]s these intentional acts deprived these claimants of their civil rights, a punitive damages award of $200,000 per individual – or $1,800,000 total – is appropriate.” Because the predecessor employer, Zoria Farms, had already settled for $330,000, the court held Z Foods as the successor employer jointly liable for the balance of $1,470,000.

This case should send an unequivocal message to employers who insist on eradicating not only problematic complaining employees–but also their relatives– that such conduct is prohibited under Title VII and will result in significant damages awards against them.

This blog was written by Valerie Chastain. 


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