• October 29, 2021

A tool or a fool for discrimination?

Disclaimer: This is a completely fictional account, created to relieve the writer of the usual dry restrictions of technical writing and to relieve the reader of the misery of reading it. Labor litigation, after all, is about people and their stories..

Discrimination: bet the odds or fill the shelves, that’s the question.

Algis stocked the shelves and checked customers at the local supermarket chain. Gordon was not overly sophisticated when it came to social grace, but he had a basic respect for all people, a trait that was taught to him by his Lithuanian mother, Lina. Lina migrated here as a child and raised Algis as a single mother. Algis grew up with stories of how men at her mother’s work harassed her. He wasn’t about to let that happen to young women at the grocery store.

Gordon was Algis’s supervisor. Gordon was married, overweight, and brusque. He saw himself as quite charming, despite complaints of body odor. He became a store supervisor just a year earlier. Algis had worked for the supermarket chain for nearly 15 years and had seen multiple supervisors come and go, but Gordon was unique. Gordon showed a clear preference for young workers who he teased and rewarded with better hours and promotions if they returned attention. But some of the women were bothered by Gordon’s extra attention. They complained among themselves that Gordon’s “jokes” were often sexually offensive and seemed to become more sexually explicit over time. The women also resented that some of the women who accompanied Gordon became his “favorites” while being denied pay raises or promotions.

Algis watched all this interaction between Gordon and the women from a distance. The women did not include him in their conversations about Gordon, but he could see for himself what Gordon was doing, and it reminded him of the men Lina had described at the table. He felt the need to report Gordon’s behavior. He wondered if he should confront Gordon directly. He decided to report Gordon to the store manager. The store manager, following company policy, took the matter to Division Human Resources, who investigated and, unsurprisingly, found no sexual harassment, but did report some “inappropriate behavior,” and gave Gordon slapped the hand that went into his personal file as a “first warning.”

Discrimination in the words of Walter Scott.

“Oh what a tangled web we weave when we first practice cheating!”

The Human Resources investigator had promised Algis confidentiality, but she revealed to Gordon that Algis was the accuser. Gordon for a time pretended not to know, and for several months “kept quiet” to avoid detection on his new mission to get rid of Algis. His opportunity came when he found an expired product on the shelves that Algis had not been able to remove and replace. Gordon prepared a lengthy “report” that included references to the store’s public health and reputation, and warned Algis that one more mistake would result in firing. A few weeks later, Gordon took the expired product out of the storage room and one night when no one was looking, he removed the current labels and replaced it with the expired items. The next day he did an inspection of the store with Algis and several other employees, Gordon “discovered” the expired product, blamed Algis, and proceeded to report the violation to the store manager, with a recommendation for termination.

The store manager then contacted the regional manager, who reviewed the facts and determined that the firing was justified, so he was fired. In the Company’s chain of command, the store supervisor could not fire employees without review and approval by the store manager, regional manager, and human resources manager. All three in the Algis case found reasons to rescind.

Defenses against discrimination

So when Algis sued the Company for unlawful retaliation, the company raised a number of defenses including:

  1. Algis was not the victim of retaliation because the people who made the decision were not the subject of its previous “hostile work environment” complaint and did not know about the alleged harassment or that Algis had complained.
  2. Algis was fired for a good cause.
  3. The long period of time between the complaint and the dismissal was in itself proof that the dismissal was not caused by retaliation.

The Company was so convinced that it could win these defenses that it filed a motion for summary judgment to have the Algis case dismissed as a matter of law. But Algis’s attorney raised several cases that persuaded the court to let the case go to trial by jury:

Reeves v. Safeway Stores Inc. (2004) 121 Cal.App. 4th 95, 114; Dejung v. Upper cut (2008) 169 Cal. App 4th 533 and Staub v. Proctor Hospital (2011) 562 United States 411.

Algis argued that these cases allowed his case to proceed on the premise that while Gordon was the only person motivated to retaliate, he influenced others with his false information. The court agreed, following the “cat’s paw” doctrine. That doctrine is basically that if there are good actors and bad actors in the termination decision process, the decision will be considered completely bad if the bad actor influenced the outcome.

Discrimination and synchronization test

As for the timing of the decision, Algis’s lawyer presented the full range of cases in court and held that time is sometimes, regardless, sufficient proof that the firing was caused by retaliatory motive. Of course, the shorter the time, the more likely the causality inference will be, but there is no external limit set by the cases. The United States Supreme Court has explicitly held that an external time limit is not necessary to support a finding of causation, but in the particular case before it, it found that twenty weeks (5 months) was too long. Clark County School District. v. Breeden, 532 US at 237-74. On Thomas v. City of Beaverton (9th Cir. 2004) 379 F.3d 802, 812, seven weeks did not prevent the finding of a causal link even without other evidence of causation. Unfortunately, in this uncertainty, only this is certain: “Whatever happens, time and hour go through the hardest day.” [Shakespeare, Macbeth].

Consequences of discrimination

Algis survived the summary trial, and with even more fighting ahead, he obtained a specific jury that determined that retaliation for his reporting of what he believed to be a “sexually hostile work environment” was a “substantial motivating factor” in your dismissal. It helped a bit when Algis’s attorney submitted a shocked video showing Gordon had made the “expired product” switch the night before the store inspection. Algis’s attorney received a time-stamped digital recording of one of the quieter shop assistants who had tolerated Gordon’s antics for too long. From “Everything is fine, what ends well”, I leave this final quote: “Love everyone, trust a few, do no harm to anyone.”

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