"Dispatched" Employee's Retaliation Claim Revived Where Low Level Co-Worker Provided "Doctored" Evidence

by Murtha Cullina
Contact

Plaintiff’s version of events

Andrea Vasquez, an emergency medical technician on an ambulance crew out on her midnight shift, received a text message from the Company dispatcher, Tyrell Gray, with the caption, "Wat u think" – and a photograph of his erect penis. This text followed earlier romantic overtures Gray had made, including asking Vasquez out on dates (which she had refused, saying that she had a boyfriend), putting his arm around her and touching her shoulders. Vasquez did not respond to the text message, or to a follow-up message from Gray, as she continued working.

When Vasquez returned to the office at the end of her shift, she was "extremely embarrassed, distraught, and crying." She promptly informed a Company field supervisor about the incident. Promising that "[w]e’re going to deal with this," the supervisor walked Vasquez to a computer in the office and asked that she compose and send a formal complaint right away. While Vasquez was typing her complaint, Gray entered the room, saw that she was crying and typing at the computer, and said: "You’re reporting me, right?" Gray then left the room, told a co-employee that Gray was afraid he was going to lose his job and asked the co-employee to lie for him and tell their supervisors that Vasquez and Gray had been in a romantic relationship. The co-employee refused and Gray left the building. After Gray’s departure, Vasquez finished writing her complaint and met with one of her supervisors and an HR Representative. They thanked Vasquez for telling her story, assured her that "[w]e don’t tolerate this sort of behavior here" and promised to "sort the situation out." Vasquez offered to show the supervisors Gray’s messages on her cell phone but they declined to view them.

Meanwhile, Gray "manipulated a text message conversation on his iPhone to make it appear as though a person with whom he had legitimately been engaging in consensually sexual banter" was Vasquez. He then took screen shots of portions of the conversation, printed them off and later presented them to management as evidence that he and Vasquez had been in a consensual sexual relationship.

By the time Vasquez met with a committee consisting of her union representative, the Company President, and the HR Representative, they had reviewed Gray’s screen shots and had already reached the conclusion that Vasquez was "having an inappropriate sexual relationship" with Gray and had proof from Gray that Vasquez had been harassing Gray. The committee refused to accept Vasquez’s version of events, refused to look at her cell phone, and fired her for engaging in sexual harassment.

Can a low level employee’s retaliatory intent be imputed to the Company?

The United States District Court for the Southern District New York said "no" and dismissed the case, holding that because Gray was a low level employee, and not a supervisor or manager, Gray’s retaliatory intent could not be imputed to the Company and therefore, the Company could not be held liable for retaliation. The Company had successfully argued that there was no evidence that its managers had any bias against Vasquez or that her termination was tainted by discrimination or retaliation. On August 29, 2016, the Second Circuit Court of Appeals (covering New York, Connecticut, Vermont and Puerto Rico) reversed the District Court and sent the case back to the District Court for further proceedings. Vasquez v. Empress Ambulance Service, Inc., Docket No. 15-3239-cv (2d Cir. August 29, 2016).

Company’s own negligence in conducting the investigation gives effect to the retaliatory intent of even a low level employee

The Second Circuit adopted the reasoning of a 2014 First Circuit case, in which that Court (covering Massachusetts, Rhode Island, Maine and New Hampshire) held that where the co-worker’s discriminatory motive causes the employee to be terminated, the employer can be held liable for the co-worker’s discriminatory intent. Liability attaches where the employer knew or should of known of the co-worker’s animus and its negligence allows the co-worker to achieve his desired end. The Second Circuit ruled that the Company could be found negligent in its investigation by "obstinately refusing to inspect Vasquez’s phone or to receive any other evidence proffered by Vasquez in refutation" of Gray’s assertions, which despite circumstance that made his story suspect, the Company "blindly credited." Therefore, "a reasonable jury could find that [Company] acted negligently in terminating Vasquez solely on the basis of Gray’s accusations."

Legal Standards

1. Under federal, Connecticut and New York law, the employer is not strictly liable for the discriminatory acts of its supervisors or rank-and-file workers. The Company has a defense if it did not know of, or had no reason to know of, the discrimination, acts promptly when a complaint is made and conducts a reasonable investigation in good faith. Under Massachusetts law, the Company does not have this defense and is strictly liable for the discriminatory acts of its supervisors but the defense applies in the case of its rank-and-file employees.

2. An employer is generally not liable for retaliation when it is not motivated by discriminatory intent. However, discriminatory intent can be imputed to the employer where a non-biased decision-maker relies on information provided by a biased supervisor. In the First and Second Circuits, the Company’s liability can now attach where the Company negligently relies on false information provided by a biased rank-and-file employee.

3. The Company is not liable simply because it incorrectly relies on a false report from an employee acting out of unlawful animus. The touch-tone is the employer’s negligence in relying on the false report.

4. The Company is also not liable for retaliation even if it negligently relies on a false report, unless those false accusations themselves were the product of discriminatory or retaliatory intent.

TAKE-AWAYS

1. We regularly see in the case reports examples of slipshod investigations and uncritical acceptance of one employee’s version of events, usually the manager’s report. The Vasquez case demonstrates that employers must exercise care in critically evaluating the reports of co-workers as well.

2. Prompt, unbiased and thorough investigations are essential to reducing liability for discrimination and retaliation.

3. View with some skepticism all documents provided by the accuser and the accused. As this case demonstrates, documents can be manipulated. For example, an email can be forwarded and then edited. It is often advisable to get your IT Department involved in reviewing electronic evidence.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Murtha Cullina | Attorney Advertising

Written by:

Murtha Cullina
Contact
more
less

Murtha Cullina on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.
Feedback? Tell us what you think of the new jdsupra.com!