Labor & Employment Law Daily Hispanic parks & rec supervisor gets reinstated, $165,162 for discriminatory investigation
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Tuesday, November 27, 2018

Hispanic parks & rec supervisor gets reinstated, $165,162 for discriminatory investigation

By Lorene D. Park, J.D.

A federal district court in Illinois has concluded that reinstating a former Chicago park supervisor is appropriate, given her strong performance and the fact that her national origin discrimination claim took issue not with her coworkers or supervisors but with the investigators and human resources department that the jury found conducted a discriminatory investigation into a hotline report that she falsified time sheets. The fact that the employer resented her for prevailing was not a good reason to deny reinstatement, as it would punish her for succeeding in standing up for her rights, noted the court. The employee was also awarded $165,162 in backpay (Vega v. Chicago Park District, November 16, 2018, Alonso, J.).

The employee was hired by the park district in 1990 and became park supervisor in 2004. She oversaw park operations, supervised employees, and conducted community outreach. Though she generally received positive reviews, things changed after the park received a September 2011 complaint from another employee on its hotline, accusing her of time-sheet falsification. The park enlisted two Chicago police department officers to help investigate.

Investigation and termination. In a typical timesheet falsification investigation, investigators gather background information and videotape when an employee leaves home and then arrives at work. Videotapes are compared to the timesheet. The investigation of the employee, however, was atypical because it lasted five-and-a-half months and the videotape recorded derogatory comments by the investigators. The report concluded that she arrived later than entered on timesheets and failed to log all absences, and that she falsified timesheets on 13 days.

In a July meeting with HR, the employee produced 56 pages of documents explaining timesheet discrepancies and refuting the report. She asserted every employee had to falsify timesheets, which were due before the timesheet period was over. She also claimed she typically worked eight-hour days, sometimes longer, and most salaried employees used an imprecise eight-hour period, such as 9:00 to 5:00. Nonetheless, she was fired for timesheet falsification.

Litigation and verdict. The employee filed suit under Title VII and Section 1981. In pretrial proceedings, the court denied summary judgment on her national origin and retaliation claims, noting among other things that Hispanics make up roughly one-third of the park’s workforce but are “grossly underrepresented in the Park’s senior executive positions and HR positions.” Also, the investigation of the employee was “remarkably long” and was the “only one in which all five investigators participated.” Significantly, when asked about his investigation of a Caucasian park supervisor accused of leaving every day to pick up her children without signing out, a senior investigator testified that he would have never prolonged that investigation for over five months. Moreover, the employee was the first employee to be fired solely for “Timesheet Falsification” without corresponding allegations of actual theft of time, or other code of conduct violations.

The case went to trial and the jury returned a verdict for the employer on the retaliation claims but found for the employee on her national origin discrimination claims. The court therefore turned to consider the relief requested by the employee.

Reinstatement. Among other relief, the employee sought reinstatement to her position as park supervisor, at a park comparable to the one she had supervised. The employer argued there was too much hostility to “be able to trust” her in a park supervisor position and reinstating her would invite conflict that would likely require “continuous judicial intervention” in the employment relationship. It also pointed out that her career path had diverged from parks and rec, and she now works in medical billing at a hospital and that she had earlier testified that working for the Chicago Park District had caused her such stress that her mental and physical health suffered.

To the court, these arguments didn’t preclude the “preferred” remedy of reinstatement. The fact that the employer resented the employee for prevailing at trial was not a good reason to deny reinstatement, as it would punish her for succeeding in standing up for her rights. Moreover, her dispute was not with her coworkers or supervisors, it was with the investigation done by the HR department, which the jury found discriminatory. Given her strong performance prior to the investigation, the court found no reason to doubt whether she genuinely wanted reinstatement.

Though the employer took issue with the condition the employee placed on reinstatement—she wanted to be put in a park in the approximate condition that she left Bessemer Park, before it deteriorated—the court did not find her request unreasonable. However, it had to give due regard to consequences reinstatement might pose to innocent third parties. Thus, the employer was not required to abide by this condition because it risked displacing other innocent employees.

Noting the employer has a large number of park supervisors, the court ordered the employer to reinstate the employee to the next park supervisor position available, and to do so by December 31, 2018. If unable to place her, the employer will owe additional back pay.

Injunction. In addition, the employer was enjoined from discriminating against the employee or retaliating against her for bringing this suit.

Damages. The court also awarded the employee $154,707.50 in lost salary; $1,200 in lost longevity bonuses; and $9,255.42 in health insurance premiums, along with prejudgment interest. While the employer argued she was not entitled to back pay because she failed to mitigate her damages, the court found otherwise. She testified that she applied for numerous jobs, but equivalent positions now required a bachelor’s degree that she did not have. She eventually had to accept odd jobs and a temporary grant-funded position in medical billing to support herself while she pursued a degree. Once she realized her efforts were futile without a degree, explained the court, the law did not require her to continue applying for jobs in her former field at her former pay and accept nothing less.

Though the employer argued that the employee’s self-reported account of her job search was not sufficient proof, the burden was on the employer and it did not provide a basis for disbelieving the employee. Nor did the employer prove that there was a reasonable likelihood she could have found comparable work with reasonable diligence.

The court refused to deduct the employee’s unemployment compensation from her back pay award and would not reduce it by the amount she saved in union dues either. That said, the court found that she failed to meet her burden of proving her damages for the value of her lost paid time off, nor did she establish that the award of pension contributions she sought was necessary to make her whole, so the court declined to grant those requests.

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