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by C. Daniel Lins
"Harry" and "Sally" work for "ACME" as nonsupervisory employees. Harry unlawfully harasses Sally—and then retaliates against Sally when she reports the harassment to ACME. Can ACME be held liable for Harry's retaliatory actions? On February 19, 2008, in an issue of first impression, the Sixth Circuit held that Title VII permits such "coworker retaliation" claims in appropriate circumstances. Hawkins v. Anheuser-Busch, Inc., 517 F.3d 321, 346 (6th Cir. 2008). Specifically, the Court held that an employer may be liable for coworker retaliation where:
(1) the coworker's retaliatory conduct is sufficiently severe so
as to dissuade a reasonable worker from making or supporting a
charge of discrimination;
(2) supervisors or members of management have actual or
constructive knowledge of the coworker's retaliatory behavior; and
(3) supervisors or members of management have condoned, tolerated,
or encouraged the acts of retaliation, or have responded to the
plaintiff's complaints so inadequately that the response manifests
indifference or unreasonableness under the circumstances.
Id. at 347 (citing Burlington N. & Santa Fe Ry. Co. v. White, 126 S. Ct. 2405, 2415 (2006); Blankenship v. Parke Care Ctrs., Inc., 123 F.3d 868, 872-73 (6th Cir.1997)).
I. Retaliation Generally
A fundamental principle of Title VII jurisprudence is that employers may be held directly liable to employees for retaliation. To determine employer liability for retaliation, an employee must first demonstrate: 1) that she engaged in activity protected by Title VII; 2) that the exercise of her protected rights was known to the employer; 3) that the employer thereafter took a materially adverse action against her; and 4) there was a causal connection between the protected activity and the materially adverse action. In Burlington, supra, the Supreme Court made clear that retaliation claims are broader than discrimination claims in this way. Specifically, in the context of retaliation, an employee need not demonstrate that an employer took an employment action adverse to her, but rather any adverse action, whether or not employment related. See Burlington, 126 S. Ct. at 2412-14.
In the event this prima facie case of retaliation is shown, the burden shifts to the employer to articulate a legitimate, non-discriminatory reason for the materially adverse action. If the employer articulates such a reason, the employee must present evidence demonstrating that the articulated reason is mere pretext and that the employer's action was actually motivated by a desire to retaliate against the employee.
II. The Hawkins Decision
Prior to Hawkins, a majority of other circuit courts (including the First, Second, Third, Seventh, Ninth, and Tenth Circuits) had determined that Title VII protected employees from retaliation by coworkers that was known to but not restrained by the employer. Two Circuits, the Fifth and the Eighth, rejected coworker retaliation claims by narrowly defining "adverse employment action" to include only actions affecting the terms, conditions, or status of employment. However, as seen above, this reasoning was specifically rejected by Supreme Court in Burlington. It was against this backdrop that the Sixth Circuit addressed the issue of, and ultimately validated claims for, coworker retaliation in Hawkins.
1. Factual Background
From 1999 to 2003, Bill Robinson, a brewery employee, allegedly sexually harassed a number of female coworkers. In 1999, Jackie Cunningham alleged that Robinson repeatedly solicited sexual favors from her, spoke to her in a lewd and sexually explicit manner, and physically touched her despite her protests. Cunningham reported this behavior to management, and she was transferred to another brewery line.
In 2000, another brewery employee, Cherri Hill, complained to her supervisor that Robinson made lewd and explicit comments to her, rubbed himself against her, and sexually propositioned her "all the time." The employer launched an investigation into Hill's complaint. Shortly thereafter, someone set fire to Hill's car while it was parked at her home. Hill believed that Robinson was responsible for the fire and reported her suspicions to Anheuser-Busch, but the brewery took no steps to investigate her allegation. Instead, management told Hill that she should not make allegations for which she did not have proof, otherwise she faced a possible suit for slander.
When the investigation into Hill's allegations concluded, the investigator stated that he believed Robinson had behaved in a sexually inappropriate manner with both Hill and Cunningham. However, none of the employees interviewed in the Hill investigation admitted to witnessing the harassing behavior. The employer sent Hill a letter informing her that her allegations had not been substantiated, that company policy prohibited retaliation, and that she could contact management if she had any questions. The brewery never reprimanded or disciplined Robinson. After the investigation was completed, the employer received an anonymous letter criticizing the investigation, stating that employees had been intimidated by Robinson from telling the truth, and recounting specific similar instances of retaliation by Robinson, such as when the tires of a female employee's car were slashed after she threatened to report Robinson for harassment.
In 2003, brewery employee Amanda Grace-Hawkins reported to her supervisor that Robinson had forcefully poked her in the right breast and then started laughing and dancing around. The employer investigated the incident, during which another employee, Kathryn Jackson, testified that she had seen the incident and seen Hawkins trying to get away from Robinson. During the course of the investigation, employees and supervisors alike confirmed that Robinson regularly harassed and retaliated against women. Anheuser-Busch suspended and then terminated Robinson, who initiated a grievance against the brewery with the help of his union. The employer called a uniformed police officer to escort Robinson off the premises, hired an investigator to monitor Robinson during the grievance process, and offered to provide security for both Hawkins and Jackson. Hawkins accepted the security, but Jackson did not. On July 29, 2003, shortly after the grievance committee affirmed the brewery's decision to terminate Robinson, someone poured gasoline in Jackson's basement and set fire to her house. A few weeks later, Robinson shot his girlfriend and then himself.
Cunningham, Hill, and Hawkins brought suit against Anheuser-Busch alleging that Robinson's sexual harassment created a hostile work environment in violation of Ohio law. Hill and Jackson, whose car and house, respectively, were allegedly burned by Robinson, also claimed that the brewery was liable for Robinson's acts of retaliation. The district court granted summary judgment in favor of the employer on all claims, dismissing the retaliation claims on the grounds that the Sixth Circuit had not previously recognized a claim for coworker retaliation, and Hill and Jackson had failed to allege an adverse employment action on the part of the employer.
2. Court's Holding as to Coworker Retaliation
On appeal, the Hawkins Court joined the majority of circuits in permitting claims against an employer for coworker retaliation in appropriate circumstances. In so holding the Court reasoned that nothing in Title VII indicated that the principle of employer responsibility did not extend to claims for retaliation by coworkers. For example, there was no reason why Title VII should not cover situations in which an employer retaliated against an employee indirectly by permitting fellow employees to punish her for invoking her Title VII rights. The Court reasoned that to hold otherwise would allow employers to recruit or permit employees to carry out retaliatory acts with impunity.
The Court then clarified the "appropriate circumstances" that would merit a claim of coworker retaliation. Surveying the relevant standards in other circuits, the Court ultimately adopted a standard similar to that employed by the Third Circuit as informed by principles expressed by the Supreme Court in Burlington:
[W]e hold that an employer will be liable for the coworker's
actions if (1) the coworker's retaliatory conduct is sufficiently
severe so as to dissuade a reasonable worker from making or
supporting a charge of discrimination, (2) supervisors or
members of management have actual or constructive knowledge of
the coworker's retaliatory behavior, and (3) supervisors or
members of management have condoned, tolerated, or encouraged
the acts of retaliation, or have responded to the plaintiff's
complaints so inadequately that the response manifests
indifference or unreasonableness under the circumstances.
Hawkins, 517 F.3d at 347.
The Court then turned to determining whether Hill and Jackson's claims survived summary judgment under this standard. The Court noted that there was no question that the plaintiffs engaged in protected activity and that they alleged that Robinson set the two fires in retaliation. So, the Court turned its attention to the three-pronged test outlined above, specifically, whether (1) Robinson's actions were sufficiently severe, (2) Anheuser-Busch had knowledge of these actions, and (3) management either condoned or failed to adequately respond to the alleged retaliation.
a. Hill's Retaliation Claim
With regard to Hill, the Court concluded that her allegations that Robinson set fire to her car after she filed a sexual harassment complaint against him were sufficient to survive summary judgment on her retaliation claim. The Court did not discuss the first prong—whether setting fire to an employee's car is sufficiently severe to deter reasonable employees from making Title VII claims—so the sufficiency of the proof under this prong apparently goes without saying.
Evaluating the second prong, the Court found that the proof showed that Anheuser-Busch knew about the allegations that Robinson had set fire to Hill's car in retaliation for her reporting him. Hill directly reported the fire to her supervisors; senior management received an anonymous letter alleging that Robinson had set fire to Hill's car; and senior management was aware of rumors that Robinson had set fire to Hill's vehicle and that Hill believed it was in retaliation for her complaints. The Court deemed this evidence sufficient to raise a genuine issue of material fact as to management's knowledge of the alleged retaliation, thus precluding summary judgment on that ground.
Turning to the third prong, the Court found that Anheuser-Busch had failed to show that it responded to Hill's complaint of retaliation in a meaningful way. Brewery management failed to investigate Hill's allegation that Robinson had retaliated against her and even chided her for attempting to make a report. Because the brewery never investigated the incident, monitored Robinson, or otherwise worked to create a safe environment for harassment complaints, the Court held that a jury could find that the brewery's failure to investigate the alleged violent retaliation was both indifferent and unreasonable. It thus concluded that summary judgment on Hill's claim of retaliation was inappropriate.
b. Jackson's Retaliation Claim
Unlike its conclusion with regard to Hill, the Hawkins Court determined that summary judgment was appropriate against Jackson's claim of retaliation because the brewery's sufficiently addressed the threat of retaliation against Jackson. As an initial matter, the Court expressed uncertainty as to whether participation in an internal company investigation regarding another employee was even protected by Title VII. Assuming for the sake of argument that Title VII applied, the Court found that Anheuser-Busch undertook proactive steps to protect Jackson from retaliation when it fired Robinson, coordinated with law enforcement to monitor Robinson, hired a security guard to follow him, and offered Jackson the protection of a security guard at her home, which she refused. Although Robinson's suicide left Jackson with limited remedies for the damages from the fire she allegedly suffered at his hand, it did not justify the avoidance of summary judgment on her retaliation claim.
Hawkins makes clear that, although employers in Tennessee now face liability for the retaliatory acts of their employees, such liability exists only if the employer knows of the retaliation and fails to do anything about it. The Hawkins case is a cogent reminder that employers should treat all employee complaints seriously and, when in doubt, err on the side of investigation. To avoid liability, employers should also ensure that their harassment-reporting procedures and investigatory procedures are adequate and lawful. If an employer is not sure whether its policies and procedures in this regard are sufficient, it should seek the advice of qualified legal counsel. |
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