Labor & Employment Law Daily Despite inability to confirm pharmacist viewed porn at work, employer had good faith belief of misconduct
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Wednesday, December 11, 2019

Despite inability to confirm pharmacist viewed porn at work, employer had good faith belief of misconduct

By Marjorie Johnson, J.D.

The employee was fired after HR interviewed four female coworkers who said he viewed naked women on his computer, gambled, and touched them inappropriately, and he himself admitted that he had visited sports and dating websites.

A male pharmacist who was fired following HR’s investigation into reports that he viewed pornography on his work computer and touched coworkers inappropriately failed to convince the Eighth Circuit to revive his gender bias claim, despite his contention that the IT department did not conclusively determine that he had visited pornographic websites. Affirming dismissal on summary judgment, the appeals court held that there was no direct evidence of discrimination and the employee failed to refute that the employer believed in good faith he engaged in prohibited conduct. Moreover, though he claimed that a female employee who was accused of inappropriate conduct was treated more favorably, he failed to show that she was similarly situated (Rinchuso v. Brookshire Grocery Co., dba Brookshire Pharmacy #102, December 9, 2019, Erickson, R.).

Early reports of inappropriate conduct. The employee was hired in May 2014 as a pharmacist at the employer’s grocery store. He signed an acknowledgment of the employer’s Internet and conduct policies, which provided that using the company computer for personal purposes or acting inappropriately at work could result in termination. Shortly after he was hired, female coworkers purportedly complained that he was engaging in inappropriate behavior, which the employer claimed resulted in a verbal warning.

HR investigates use of work computer. In January 2017, HR opened an investigation after a coworker complained that the employee was viewing pornography on his work computer. The company interviewed four female coworkers who claimed that he viewed naked women on his computer, gambled, and touched them inappropriately. The IT department was unable to conclusively determine if he viewed pornography on the computer and he denied doing so. He also denied gambling at work or touching his coworkers, but admitted that he visited sports and dating websites on the work computer. He was terminated on January 20.

Bias claim tossed. The employee filed this lawsuit asserting he was fired in violation of the Arkansas Civil Rights Act’s prohibition on gender-based discrimination. In particular, he claimed that he was treated unfairly because he was terminated based on accusations of inappropriate touching while a female employee who had been previously accused of inappropriate touching was not. He also argued that discovery had elicited direct evidence of the employer’s discriminatory motive, but the district court held that his argument was an untimely attempt to amend his complaint and declined to consider it. It then granted summary judgment against him, ruling that he failed to establish a prima facie case.

No “direct evidence.” The employee claimed that he presented direct evidence by showing that: (1) he was never warned about inappropriate touching in 2014; (2) the employer never interviewed his two male coworkers during its investigation in 2017; (3) the employer failed to present video evidence of him touching coworkers or misusing his work computer; and (4) the employer lacked conclusive evidence that he viewed pornography at work. However, the Eighth Circuit determined that even if true, none of this evidence established the required “specific link” between his termination and gender-based animus to constitute direct evidence.

Good faith belief. The central question was not whether the employee actually engaged in prohibited conduct, but whether the employer believed in good faith that he did so. Here, the employer’s policies permitted termination for inappropriate conduct or for personal use of a work computer, the latter of which the employee admitted. Thus, the employer’s decision not to interview two male employees while investigating inappropriate touching of exclusively female employees, as well as the absence of conclusive evidence that the employee violated Internet and conduct policies, was insufficient to prove improper termination.

Female not similarly situated. The employee also failed to establish a prima facie case of sex discrimination since there was no “specific, tangible evidence” that the purported female comparator was “similarly situated in all relevant respects, including that the offenses were of the same or comparable seriousness.” An “unsupported, self-serving allegation that another employee was similarly situated is insufficient.” Therefore, he failed as a matter of law to provide sufficient evidence to give rise to a jury question on the issue of disparate treatment.

Harmless error. The Eighth Circuit agreed with the employee that the district court abused its discretion by declining to consider his direct evidence argument based on its determination that it was “essentially an untimely motion to amend his complaint to add a new theory of recovery.” Proof by direct evidence and a McDonnell Douglas inference are two alternative methods of proving disparate treatment, not separate theories of recovery. Therefore, it was permissible for him to prove his claim either by direct evidence or under the McDonnell Douglas framework. However, because the district court did not err in granting the employer’s motion for summary judgment, the abuse of discretion was harmless.

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