Employment Law Daily Manager’s ‘inexcusable’ conduct not bad enough to revive discrimination and retaliation claims
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Monday, January 18, 2016

Manager’s ‘inexcusable’ conduct not bad enough to revive discrimination and retaliation claims

By Lorene D. Park, J.D. Though agreeing that a male supervisor’s comments and actions toward female employees and racial minorities were “inexcusable and offensive,” the Third Circuit, in an unpublished opinion, affirmed rulings that disposed of the employees’ discrimination and retaliation claims as a matter of law. It also found no abuse of discretion in evidentiary rulings during the trial of the one retaliation claim that survived summary judgment (only to be rejected by a jury). Furthermore, summary judgment was properly granted on the breach of contract claim because the anti-discrimination policy, which contained only general language, did not create a binding contract (Tourtellotte v. Eli Lilly and Co., January 13, 2016, Van Antwerpen, F.). “Inexcusable and offensive.” According to three female pharmaceutical sales reps who worked at Eli Lilly, a district manager who was their direct supervisor engaged in a plethora of conduct described by the district court below as “inexcusable and offensive.” For example, he said he majored in home economics to be around women, remarked on the appearance of female reps and referred to them as “Barbie dolls,” mocked the accent of a Hispanic employee in front of all district employees, remarked that “black people do not speak fast” when assuming the part of a doctor during a role-playing exercise, in a different meeting said “let’s let the pretty girls go first” during a group activity, assigned menial tasks that were not required of male sales reps, made offensive comments about another employee’s practice of breastfeeding her child, and criticized the employee for asking for time off to care for her sick child. Fallout from manager’s behavior. Although the employees complained, they claimed that HR failed to investigate. One employee was issued a written warning after her second complaint. She went on medical leave for stress and anxiety and, while she was on leave, her position was filled. She was given 16 weeks of paid time (“medical reassignment”) during which to find another job at the company but did not apply for one and was terminated. The second employee was issued warnings and, in a meeting about her performance, the district manager repeatedly told her to “speak English to me,” which she believed was a reference to Ebonics. She was also eventually terminated. The third employee went on medical leave for work-related stress and depression that her doctor attributed to working with the district manager. The employer later denied her request to work with a different supervisor. She was eventually terminated for refusing to return. Litigation. The employees filed suit alleging discrimination based on race, gender, and disability under federal and state law, as well as claims of retaliation and breach of contract (based on an employee handbook’s anti-discrimination language). During the course of the litigation, the district court issued several decisions whittling down the employees’ claims and eventually only one of the three went to trial on a single claim of retaliation. After final judgment was entered against her, the three appealed. Affirming in a lengthy opinion, the Third Circuit provided a detailed account of the factual allegations and addressed the individual discrimination and retaliation claims of each employee separately. Anti-discrimination policy was not contract. While New Jersey law recognizes that an employee manual, such as a handbook, can create and implied contract, if alleged discrimination would violate the New Jersey Law Against Discrimination (NJLAD), the state does not recognize a separate breach of contract claim based on “generalized anti-discrimination language in an employee handbook.” Here, the handbook passages on which the employees relied had “generalized anti-discrimination language” and appeals court agreed with the district court that the language did not create a binding contract. Consequently, the claim for breach of contract failed. Race and sex discrimination claims. The employees’ discrimination claims also failed. The first employee failed to show that the employer intentionally put her on medical reassignment for the purpose of terminating her or that its actions while she was on reassignment gave rise to a claim of discrimination. The second employee failed to provide evidence, beyond her own bare assertions, to support her theory of race or sex discrimination and did not dispute the conduct for which she was disciplined. Nor did she contend that the person who terminated her discriminated against her. The third employee, like the first, failed to provide evidence giving rise to an inference that her termination was discriminatory. Rather, the incidents on which she relied, including more favorable treatment of male coworkers and disparaging remarks, spoke more to her hostile work environment claim and were not linked to her discharge. Hostile work environment claims. All three employees asserted hostile work environment claims based on the district manager’s conduct. Assessing all comments and actions in light of both their frequency and nature, the appellate court agreed with the district court that the incidents “did not unreasonably interfere” with the employees’ ability to do their jobs and so were not sufficiently severe or pervasive to create a hostile work environment. Disability discrimination claims. The two employees who went on medical leave for anxiety, stress, or depression—which they attributed to their supervisor’s conduct—asserted disability discrimination claims under the ADA and NJLAD. The first employee presented evidence showing she was disabled, but could not advance her failure-to-accommodate claim because the employer engaged in the interactive process while she outright refused to engage. The other employee failed to exhaust her administrative remedies because her disability discrimination claim was not within the scope of her EEOC complaint or the resulting investigation. Retaliation claims. Also affirming summary judgment on the retaliation claims, the appeals court found that the first employee failed to support her claim that the employer put her on medical reassignment in order to terminate her. The second failed to show that her termination for numerous and well-documented performance deficiencies was pretextual. As to the third employee, whose retaliation claim went to trial, the Third Circuit rejected her challenges to the district court’s evidentiary rulings. Among other points, the appeals court found no abuse of discretion in restricting the introduction of evidence about the district manager’s conduct towards others to that which the employee personally observed.

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