By Marjorie Johnson, J.D.
It was unclear whether the company president truly reinstated the employee by telling him he could not have been terminated and reassuring him that "I am going to bring you back" and will "let you know," since the employee was never told to report to a specific job at a specific time.
A sheet metal worker who received a termination notice after his repeated complaints about a male coworker’s sexual assaults were ignored by a supervisor—who mistakenly believed the employee was sleeping with his girlfriend and falsely accused him of absenteeism—defeated summary judgment on his state-law HWE and retaliation claims. A federal district court in Hawaii rejected the employer’s contention that the assaults could not have occurred since the employee was a bodybuilder and larger in size than the alleged harasser. A triable issue also existed as to whether he was terminated when he received the notice or was reinstated during a phone call with the company’s president and then voluntarily quit months later when he asked to retrieve his tools (Ho v. Blue Mountain Mechanical, Inc., April 14, 2020, Mollway, S.).
The employer worked with a local union to provide plumbing and sheet metal work for federal construction projects. In 2014, it hired the employee to work on a project at an army medical center. The president of the company asserted that his work was not continuous and depended on what projects were available.
Sexual assaults. In 2015, a male coworker purportedly poked the employee in the rectum and buttocks while he was on a ladder, nearly causing him to fall. He repeatedly asked the coworker to stop, but the poking continued. From February through December 2017, the coworker also allegedly used a hammer, stick, and other items to poke him in the rectum weekly, and also allegedly pinched his nipples and poked his penis.
Supervisor ignores complaints. In November, the employee reported the conduct to his supervisor, who "laughed and took no action." He continued to complain on multiple occasions, but no action was taken.
Accused of affair. The employee also claimed that the supervisor incorrectly believed that the employee was having an affair with his girlfriend, causing him to both ignore his complaints and make false allegations about his absenteeism to get him fired. In addition to regularly accusing him of the suspected affair from August 2017 through March 2018, the supervisor forced the employee to show him his text messages on his phone.
Termination notice. On March 20, the employee received a termination notice indicating he was fired for absenteeism. He called the company president on March 23, and explained that the supervisor had not instructed him to report for work on the day at issue, but only accused him of having an affair with his girlfriend. The president agreed that he should not be fired and told him that he’d look into it and get back to him. However, he was never contacted about further work.
On March 26, the president sent the employee a text message indicating that he was trying to find him work and would let him know. After receiving no further communications, the employee sent a text message to the president on July 27 asking for his tools "ASAP," which the president claimed he interpreted as him leaving the company.
Recorded telephone call. As an initial manner, the court ordered the employer to publicly file a redacted version of the employee’s videotaped recording and transcript of the March 23 conversation. The information to be redacted consisted of confidential personnel information discussed about another worker’s irrelevant conduct. In declining to seal the entire exhibit, the court found it irrelevant whether the employee violated Washington law in recording the call since the parties already discussed that conversation at length and the employee’s declaration indicated that he recorded it.
Jury to decide if assault occurred. Turning to the merits, the court rejected the employer’s contention that it was implausible that the coworker sexually assaulted the employee because he was a body builder and much larger in size. "There are many reasons besides size that go to whether a person might or might not physically resist a sexual assault or harassment," and the employee allegedly feared that defending himself might get him fired. Instead, he reported the assault to his supervisor, who took no corrective action. And while the employer claimed that it investigated and found the allegations unsubstantiated, a triable issue existed as to whether the assaults occurred.
Didn’t fail to report. It was also not dispositive that the employee failed to mention the sexual harassment in his telephone call with the company president. He claimed that he repeatedly complained to his supervisor and there was no evidence that the employer required harassment complaints to be brought to its president instead.
Was he terminated? Finally, the court rejected the employer’s argument that the employee was not terminated and undisputedly left the company "on his own." Notably, it was undisputed that he received a termination notice on March 20 and called the president to discuss it on March 23. There was also no dispute that the president told him that he could not be terminated because of any supposed affair, and then sent him a text message on March 26 which indicting he was "going to bring [him] back’ and would "let [him] know."
However, the employer failed to establish that he was actually reinstated or ever told to report to work on a specific job at a specific time. While the president claimed that he intended to have him work on an upcoming project beginning in June, but the project was pushed back, there was no indication that employee was ever advised of those plans. Thus, a jury would decide whether he voluntarily quit when he asked to retrieve his tools ASAP. It was unclear whether the president had "truly reinstated him because by that time, four months had passed since he gave reassurances that he would see what work he had coming up and would get back to him.
The case is No. 1:19-cv-00221-SOM-WRP.
Attorneys: Elizabeth Jubin Fujiwara (Fujiwara & Rosenbaum) for Alex Ho. April Luria (Roeca Luria Shin) for Blue Mountain Mechanical, Inc.
Companies: Blue Mountain Mechanical, Inc.
Cases: Discharge EvidenceDiscovery Retaliation SexualHarassment GCNNews HawaiiNews
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