Retaliation Claim Proceeds When Evidence Allegedly Was Manufactured

By Karen Rhodes Oct 5, 2016
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An employer may be found liable for retaliation against an employee claiming harassment even when the basis for retaliation was allegedly manufactured by a lower-level employee who duped the company into thinking there was consensual sexual banter, the 2nd U.S. Circuit Court of Appeals has held.

In 2014, Andrea Vasquez, an emergency medical technician employed by Empress Ambulance Service Inc., alleged that one of her co-workers, Tyrell Gray, had made a series of unwelcome sexual overtures toward her, culminating in him texting her a naked picture of himself while she was at work one night. The supervisor and HR representative conducting the investigation on behalf of the company allegedly refused Vasquez's offer to show them the messages on her cellphone, but committed that "we're going to deal with this."

According to the allegations in Vasquez's complaint, Gray, having surmised that Vasquez was lodging a complaint against him, set out to manufacture evidence against her, including manipulating a text message conversation on his phone to make it look as if Vasquez had been engaging in consensual sexual banter with him. When the employees conducting the investigation were presented with this "evidence," they credited it, notwithstanding Vasquez's denials and repeated offer to show them her cell phone, which would purportedly have controverted Gray's evidence.

After she was terminated for having allegedly engaged in sexual harassment herself, Vasquez filed a complaint for retaliation in violation of Title VII of the Civil Rights Act of 1964.

The district court granted Empress Ambulance Service's motion to dismiss the case, accepting the company's argument that Gray's retaliatory intent could not be attributed to the company and that, therefore, the business could not have engaged in retaliation against Vasquez. (In other words, the company argued that the decision-makers themselves lacked retaliatory motive, but had simply been duped by Gray.)

The 2nd U.S. Circuit Court of Appeals, however, reversed the district court's order. According to the court, under the general agency principles governing retaliation and other claims under Title VII, an employer may be liable for wrongs committed outside the scope of an employee's employment when the employer is itself negligent in giving effect to the retaliatory intent of its employees (in this case, Gray's intent to get Vasquez fired).

In adopting this theory of liability (known as a "cat's paw" theory in reference to a fable in which a monkey tricks a cat into reaching into a fire for a chestnut), the court wrote: "Only when an employer in effect adopts an employee's unlawful animus by acting negligently with respect to the information provided by the employee, and thereby affords that biased employee an outsize role in its own employment decision, can the employee's motivation be imputed to the employer. .... Put simply, an employer can still 'just get it wrong' without incurring liability under Title VII ... , but it cannot 'get it wrong' without recourse if in doing so it negligently allows itself to be used as a conduit for even a low-level employee's discriminatory or retaliatory prejudice."

Finally, the court held that the facts pleaded in Vasquez's complaint constituted sufficient pleading of negligence in the treatment of Vasquez's and Gray's conflicting accusations. For example, the court found inherently suspicious the timeline of Gray's account, in which Vasquez purportedly had been eagerly sending explicit messages just hours before filing her internal complaint. Likewise, the court noted that the evidence that the messages presented by Gray were sent by Vasquez was weak, including a picture that showed only "a small fraction of a face which can by no means be concluded to be that of Vasquez." Finally, the court faulted the company for having refused to inspect Vasquez's phone or to review other evidence offered by her to refute Gray's account.

Accordingly, the court held Vasquez was entitled to proceed with her retaliation claim.

Vasquez v. Empress Ambulance Service Inc., 2nd Cir., No. 15-3239-cv (Aug. 29, 2016).

Professional Pointer: This case presents a vivid reminder of how important it is to conduct investigations of workplace discrimination and harassment complaints in a professional manner. A negligent investigation may result in liability that might otherwise have been avoided.

Karen Rhodes is an attorney with Swerdlow Florence Sanchez Swerdlow & Wimmer, the Worklaw® Network member firm in Beverly Hills, Calif.

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