Claim that complaint procedures were futile won’t save HR employee’s sexual harassment case
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Friday, September 20, 2019

Claim that complaint procedures were futile won’t save HR employee’s sexual harassment case

By Lisa Milam, J.D.

Her job duties included training new hires on company sexual harassment policies and complaint procedures, but she failed to follow them when she accused her own supervisor of sexual harassment.

A human resources employee who filed suit claiming her supervisor sexually harassed her was stymied by the Faragher/Ellerth defense because the employer had several policies in place which, when combined, were sufficiently clear and robust, and the employee failed to use the complaint procedures. A federal district court in Texas rejected her plea that the employer’s policies were ineffective, that the sexual harassment training was "a joke" (her harasser led the trainings), and that she didn’t complain for seven months because she didn’t know to whom to complain. Although she was fired just weeks after making her eventual complaint, her employer cited as legitimate reasons for her discharge numerous felony and misdemeanor convictions that she failed to report on her job application (Fillmore v. Nan Ya Plastics Corp., U.S.A., September 17, 2019, Miller, G.).

Sexual harassment, assault. The employee worked in the HR office of one of the plastic company’s plants. Her supervisor was the personnel administrator (he replaced the recently retired HR administrator who continued to work part-time in a transitional role). According to her complaint, her supervisor told her he "wanted to f*** her" and that he wished he could be the cell phone in her back pocket, among other comments, and also assaulted her (he grabbed her vagina, breasts, and buttocks). The supervisor harassed other female plant employees as well. He allegedly told one employee "he wanted to stick his face in her private parts."

However, it took the employee seven months to report the harassment in accordance with the employer’s formal complaint procedures. Her supervisor was terminated less than ten days later. She was fired the following month.

Employer knowledge of harassment? The supervisor regularly made inappropriate comments about his penis to employees in front of the plant manager (his superior), who "would just giggle and laugh it off." That meant the plant manager had actual knowledge of the harassment long before she complained, the employee argued, and neither he nor the company took adequate steps to address the harassment after they knew.

But the company asserted that the plant manager didn’t know; he submitted a declaration stating that the employee never complained to him, that he never saw the supervisor harass her, and that he would have acted promptly to correct any such misconduct had he seen it. On these facts, any "stray comment" he might have heard from the supervisor was hardly severe or pervasive enough, under Fifth Circuit precedent, to have imputed notice of a sexually hostile work environment, the court explained. And the plant manager’s alleged knowledge of the supervisor’s behavior didn’t absolve the employee of her obligation to follow the company’s reporting procedures.

Faragher/Ellerth defense. The employer had numerous "explicit and categorical" policies addressing sexual harassment and providing specific instructions for reporting violations, including a toll-free hotline to report noncompliance with company policies and procedures. It distributed its policies to all employees, and the employee acknowledged their receipt when she was hired (initialing every page of the policy, as required). In fact, her job duties included training new hires on these and other policies. But she unreasonably failed to take advantage of the corrective procedures available to her, the employer urged.

Anti-harassment policies were effective. The employee countered that it was "obvious" the policies were ineffective—"empty formalism" that did nothing proactive to prevent harassment. She also said that its sexual harassment prevention training was "a joke," pointing out that her harasser was the one responsible for training new employees about sexual harassment, and that he often made racial and sexually charged jokes during these new-hire orientations. To support her contention the policies were ineffective, the employee noted that no other employees had come forward with complaints about the supervisor’s harassment and sexually charged jokes.

She also pointed to the fact that she previously had reported a coworker who she discovered looking at pop-up ads of prostitutes on his work computer (and who reacted angrily to her in a separate incident). The company investigated her report and he was counseled. During the investigation, IT discovered pornography on his computer but determined that the files were "from years ago," were likely put there by the computer’s prior user, and found no evidence the coworker actually viewed the pornography. The employer took no further action. That the company discovered an additional problem during its investigation did not mean its sexual harassment policy was ineffective, the court explained. As the employer observed, if a Faragher/Ellerth defense could be defeated simply because harassment had occurred, it would negate the purpose of the rule.

What mattered was that the employer’s policies were sufficiently "robust" to establish that it exercised reasonable care to prevent and promptly correct sexual harassment, and it did so here, by a preponderance of the evidence.

Reporting procedures were sufficient. The company’s equal opportunity and sexual harassment policies state that employees are to report complaints to their supervisors, the local HR department, or to the corporate personnel director of Formosa Plastics, a sister company that advises the employer on HR matters. Also, the company’s Business Ethics Guidelines and Code of Business Conduct impose a duty to report violations of employer policies and provide a toll-free hotline to that end.

About that hotline. The hotline, however, is not identified as a reporting procedure in the actual sexual harassment policy. Plus, the employee said she didn’t know about the hotline, did not remember reading about it in the business ethics guidelines, her HR coworker never mentioned it when the employee asked her how to report harassment, the outgoing personnel administrator told her she didn’t know who answered the hotline and no employee had ever used it, and she never reviewed the hotline information with new employees when discussing the business ethics guidelines.

These arguments were unavailing, said the court. She initialed the policies outlining the reporting procedures, including a provision that states employees are "expected to understand and comply" with the company’s business ethics guidelines, code of conduct, and "those policies, practices, and regulations that affect his or her job, and to report any violation." The policy instructs employees to seek guidance "when in doubt" through their own supervisor, the local HR representative, or the toll-free hotline. Her contention that nobody used the hotline didn’t mean that the hotline was unknown. And her personal failure to review the procedures—despite being an HR professional working in the HR department—did not suggest any failure on the employer’s part to exercise reasonable care to prevent harassment.

She unreasonably failed to report harassment. There were other available reporting mechanisms, including complaining up the supervisory chain, to the local HR department, or to the corporate personnel director at Formosa. The employee didn’t promptly utilize any of these avenues. She gave a number of reasons why: Complaining to her immediate supervisor obviously would have been futile; same with the plant manager, who’d laughed along at his remarks. She didn’t trust the semi-retired HR administrator because of her inadequate response to the prior complaint about a coworker (she had attributed his conduct to his "culture," and told the employee to "just relax"). It wasn’t clear who headed the local HR department at the time of the harassment, and the employer didn’t provide enough information about who to contact at Formosa. She reported the harassment as soon as she could figure out where to do so, she contended—when she found some papers in the receptionist area pointing her in the right direction.

No excuses. These arguments also lacked merit. The employee routinely contacted Formosa as part of her job duties, and the corporate phone numbers were included on a list maintained in HR and provided to all HR staff. Although she did not know exactly who the policy meant for her to contact, she could have called anyone else in Formosa’s HR office to obtain contact information for the correct person, as she eventually did. Under these circumstances, the employer’s failure to list an exact name and phone number did not excuse her failure to timely report the harassment. The court found she unreasonably failed to take advantage of the corrective opportunities available and that no reasonable jury could find otherwise.

Legitimate reasons for discharge. The employee also alleged she was discharged in retaliation for her sexual harassment complaint, pointing to the "incredibly suspicious timing" of her termination to support her claim. But the employer presented numerous legitimate, nonretaliatory reasons for her termination: It received two separate reports that she (and her boyfriend, also an employee) divulged the personnel administrator’s confidential salary information to other employees. Around the same time, she was arrested for identity theft—especially problematic given her proximity to confidential employee information. (The arrest was reported in the local newspaper, and other employees were discussing the arrest and expressing concerns about her access to their confidential information, making her continued employment in their HR department untenable.) Finally, the company had discovered that she had three prior felony convictions and five misdemeanor thefts, which she failed to disclose on her job application.

The case is No. H-18-1050.

Attorneys: Megan Leigh Dixon (Lee Braziel LLP) for Jennifer Fillmore. Christine Elaine Reinhard (Schmoyer Reinhard LLP) for Nan Ya Plastics Corp. USA.

Companies: Nan Ya Plastics Corp. USA; Formosa Plastics

Cases: Discrimination SexualHarassment Discharge Retaliation GCNNews TexasNews

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