Legal Blog

Labor & Employment Telebrief – 12.11.13

By Howard K. Kurman, Esquire An Edited Transcript. Issues discussed:

  1. Frogley v. Meridian Joint School District (Supreme Court of Idaho ) 11/27 – Issue of Bullying: Signal of what is to come; recommendation to employers
  2. The National Law Review article by Jonathan Frieden, Esq. Summary of 10 Dos and Don’ts with regard to social media policies.
  3. 10th Circuit, the Federal 10th Circuit, Northern District of Texas. Issue of Sexual harassment and Retaliation. Case filed by two employees who sniffed and hovered around a female coworker and when she complained, the female employee was terminated.

Frogley v. Meridian Joint School District (Supreme Court of Idaho) 11/27 – Issue of Bullying: Signal of what is to come; recommendation to employers

An interesting case coming out of the Supreme Court of Idaho. Idaho is certainly not the hub of Judicial activism and not the most prestigious of courts. Nevertheless, I thought this was an interesting case and certainly worth mentioning for a couple of reasons. Details of the Case: Plaintiff files for a) Retaliation and b) Negligent Infliction of “emotional distress.” The plaintiff, Wade Frogley, signed a one-year contract to be the assistant principal at this school called Mountain View High School in Idaho, back in 2008. Frogley alleges that:

  • Within weeks of commencing his job, he was subject to continuous sexual harassment.
  • Two weeks after beginning work, while attending an administrators meeting, with his principal and three other assistant principals, the assistant to the principal slid an envelope addressed to him under the door. The envelope contained a fake wedding announcement claiming that Frogley was about to marry a cheap two-bit tramp. His face was imposed on a picture of a groom and a scantily clad bride, and, he asserts, that the principal admitted to having a secretary prepare and deliver the envelope.
  • During the first week of lunch meetings, because he had more food than anyone else, the principal commented that he was having sex with the lunch servers in exchange for food. He asserts that the principal and other administrators made comments about his exchanging sexual favors for food on a near daily basis.
  • Despite his objections over a period of time, these kinds of comments did not stop. The case recites all kinds of other things that were supposedly happening despite his complaints to the principal and others, even the Superintendent of Schools, that this kind of (behavior) stop.

Frogley eventually was terminated.

  • He brings a case in Idaho against the School District for both Retaliation in defense that he claims that his termination was due to his having filed a complaint of this kind of harassment. And, interestingly enough, he filed also a claim for a tort, which is called “negligent infliction of emotional distress.”

Commentary

The tort called “intentional infliction of emotional distress” is where somebody intentionally inflicts by egregious behavior, a severe emotional harm on an individual, which can be actionable. Normally, it is a very hard burden for a plaintiff to prove. But, in this case, essentially what Frogley asserted was that as a result of the School District’s negligence knowing, or should know – or the School District should have known that he was susceptible to these kinds of complaints or teasing or abusive comments, which could be construed in some form or fashion as bullying, that he would have had and did have mental and emotional harms, which led to physical harms as well. And, so, he claimed in his lawsuit a case for negligent infliction of emotional distress. Now, the court essentially was dealing with this on the granting of a summary judgment to the School District. In other words, there wasn’t a trial, but the lower court essentially found that there wasn’t enough evidence for any jury to conclude that Frogley would have been harmed by these statements. I find the case interesting for the following reasons. The findings of the court: The court describes the elements of negligent infliction of emotional distress as, (1) a legal duty recognized by law; (2) a breach of that duty; (3) a causal connection between the defendant’s conduct and the injury; and, (4) actual loss or damage; and, (5) additionally, there must be a physical manifestation of the plaintiff’s emotional injury so that mental harm is not actionable in and of itself. However, what the Supreme Court of Idaho says is that liability may arise where a conduct caused harm to a susceptible or frail individual and the defendant, in this case the School District, was aware of this condition. Here, what the court holds is that Frogley had raised a sufficient question of fact to survive summary judgment on the claim and that even though he may not have had a sexual harassment – an underlying sexual harassment claim, nevertheless, it was, as the court said, ‘It is true that it is expected that Frogley may be able to endure a certain amount of inconsiderateness in ordinary social situations at work, but, despite the School District’s contention at oral argument that this conduct is normal conduct in any workplace and only merely inconsiderate, we disagree. Frogley alleged significant instances of harassment and demanded that such harassment stop but, nonetheless, was still harassed. He also offered evidence of retaliation on pretext. We therefore hold,’ the court says, ‘that there was a sufficient question of fact as to whether the School District’s conduct exceeded that degree of inconsiderate verbal remarks to which an ordinary person is expected to be hardened.

Take Aways:

Recommendations for employers:

  • Make sure corporate policies include prohibition on bullying.
  • Actions that may not rise to level of harassment may nonetheless be actionable due to “negligent infliction of emotional distress.”
  • Signal of things to come.

Details:

  1. “It would be wise and a proactive action on your part to make sure that your corporate policies on workplace harassment now include a prohibition on bullying and that sort of abusive conduct that occurs in the workplace.”Despite the fact that this case evolved out of a much less influential judicial state, like Idaho, nevertheless, it is the highest court in Idaho, and this case may get picked up for the proposition that conduct which may not rise to the level of workplace harassment may nevertheless rise to the level of a negligent infliction of emotional distress where you have a susceptible individual who makes a complaint to a company and where there are insufficient proactive measures taken by the company or employer to deal with that particular situation.It’s incumbent upon all of you to examine your corporate policies and to make sure that there are policies and procedures in place to deal with what I consider to be a burgeoning sort of cottage industry of bullying and abusive behavior in the workplace.
  2. I think we’ll see more of these cases come up, so that even though an employer’s actions may not rise to the level of workplace harassment until Title 7 or an analogous state act, it may nevertheless similarly rise to the level of actionable conduct on the part of an employer if you have a negligent infliction of emotional distress.
  3. (This case is) a signal of what I’ve been saying for the last year, which is that despite the fact that there is no legislation on anti-bullying today, I think it’s coming. You’re going to see more and more of these cases focus on activities by an employer or an employer’s agent that, while not rising to the level of harassment, nevertheless, rise to the level of perhaps negligent infliction of emotional distress.

National Law Review article by an attorney, Jonathan Frieden: 10 Dos and Don’ts with regard to social media policies.

  1. Red Flag – Don’t have a policy prohibiting an employee from releasing confidential information. The National Labor Relations Board takes the position that a blanket policy which prohibits the dissemination or the discussion of asserted confidential information may very well violate the strictures of Section 7 of the National Labor Relations Act, which protects concerted protected activity on the part of an employee.
  2. Do have a policy that advises employees to maintain the confidentiality of the employer’s trade secrets and private or confidential information. Obviously, the more specific is the proprietary or confidential information, the more, as an employer, that you can assert protection over that information and the dissemination or communication about that information; so that while you cannot and should not broadly say that employees cannot disseminate confidential information, because that invoke communications regarding terms and conditions of employment of wages, you certainly can protect proprietary information, trade secret information, formula information, those kinds of things, from dissemination or from communication.
  3. Don’t have a policy prohibiting employees from commenting on any legal matters including pending litigation. Obviously, under Section 7 of the National Labor Relations Act, employees have the right to band together or to communicate with regard to terms and conditions of employment, lot of which may be pending litigation in the employment law field. So, you have to be careful about a blanket prohibition on having employees not be able to communicate regarding pending litigation.
  4. Don’t have a policy prohibiting employees from making disparaging remarks about the employer. The NLRB takes the position, as I’ve stated in the past during 2013, that a blanket prohibition on disparaging comments could invoke, again, the right of employees to band together and to proactively criticize terms and conditions of employment or employer policies, even though they may be found by the employer, in terms of the nature of such statement, to be disparaging. So, use of the word disparaging really has to be used with caution.
  5. Do have a policy that prohibits employees from making defamatory statements on social media about the employer, customers, vendors, and generally remind employees to be honest and accurate. So, again, while you need to be mindful of the NLRB’s prohibition on simply saying you cannot prohibit in a blanket sort of way disparaging comments, certainly you can prevent comments that would otherwise be found to be defamatory, because they’re false and malicious, about the company itself or its agents or its vendors or customers.
  6. Do have a policy that prohibits employees from making defamatory statements on social media about the employer, customers, vendors, and generally remind employees to be honest and accurate. So, again, while you need to be mindful of the NLRB’s prohibition on simply saying you cannot prohibit in a blanket sort of way disparaging comments, certainly you can prevent comments that would otherwise be found to be defamatory, because they’re false and malicious, about the company itself or its agents or its vendors or customers.
  7. Don’t have a policy advising employees to check with the company to see if the post is acceptable or if the employee has any doubt about whether it’s prohibited. This, again, invokes Section 7 of the NLRA, which basically would say that employees are not under an obligation to seek the employer’s permission before they engage in collective and conflictive and protected concerted activity.
  8. Do have a policy that prohibits employees from representing any opinion or statement as the policy or view of the employer. That’s important.
  9. Don’t have a policy prohibiting negative conversation about coworkers or supervisors. Again, this invokes the National Labor Relations Act Section 7, which again states that employees can talk about other employees or other supervisors even if they are construed to be negative because that’s “collective protected concerted activity.”
  10. Do advise employees to avoid posts that reasonably could be viewed as malicious, obscene, threatening, or intimidating, or might constitute harassment or bullying.

Again, nobody has a license through social media sources, whether they are Facebook posts, tweets, or anything else, to violate your workplace harassment policies or your anti-bullying policy. So, even though employees band together and may post certain things that have negative connotations which may be okay in the absence of violating your workplace harassment policies, if they violate the workplace harassment policies, they are subject to discipline. So, those, I think, are good clues as to what you ought to be looking for if you are amending or seeking to amend your social media policies going into the new year.

A case that was decided two weeks ago by the 10th Circuit, the Federal 10th Circuit, which comes out of Texas, the Northern District of Texas – Issues are Sexual Harassment and Retaliation

An interesting case because of a few principles that it demonstrates. Details of the Case: We have an employee (named Royal) who worked at an apartment complex for only four days before she was fired by the management company. Royal alleges that during her brief tenure of four days, she was regularly visited in her small office by two maintenance men who, “who hovered over her and sniffed her in a sexually suggestive manner.” When she complained to her supervisors about this behavior, she was then fired for unspecific reasons. Appeal wise, the appeal came to the 10th Circuit from the district court’s grant of summary judgment dismissing her complaint on the grounds that the alleged misconduct was not objectively unreasonable nor practice made unlawful by Title 7. According to the 10th Circuit, two maintenance workers would enter her office and would hover over her, as she sat at her desk, and sniff her. This harassment occurred about 12 times for each worker over the four days of Royal’s brief employment. Sometimes each would come alone and sometimes they would come together. Royal told them several times that she did not like their behavior. Apparently, they were undeterred. The workers would sometimes sniff and hover directly over Royal’s head when she was seated. Sometimes, the men would sniff even when Royal exited the bathroom. A meeting was subsequently held by the company at which this employee spoke up and complained about this particular activity on the part of these two maintenance people. In response, one of the maintenance men claimed he had a medical condition; the other maintenance man, according to the plaintiff, stated that he “needed to get a release.” Immediately after that meeting, the building manager called this employee into her office and discharged her. According to the plaintiff, the company supplied no reason, and at oral argument, the attorney for the company asserted that her offense which led to her termination was swatting a fly harder than was necessary and slamming the door. Just a ridiculous set of facts, in my opinion, for a federal appellate court to deal with. And, again, this is not a trial. This is not coming to the appellate court from a trial. This is coming to them from the grant of a motion for summary judgment in the employer’s behalf. What the 10th Circuit says is,‘We hold that there is a genuine dispute of material fact whether the maintenance men’s behavior violated Title 7.’ The company was on notice of the sniffing, the hovering, and the “I need a release” comment. The sniffing and hovering over a woman by two men in a small confined space can be viewed by a reasonable jury as harassment based on the plaintiff’s sex. Indeed, it is difficult to imagine the maintenance men sniffing and hovering over Royal, that’s the plaintiff, if she were a man. A reasonable jury could conclude that the described conduct was pervasive. Royal worked in a small office area and was subject to each maintenance man’s objectionable conduct approximately 12 times over four days. The only thing interrupting this conduct seems to have been her termination. These menacing acts, which were done over Royal as she was sitting and some of which were done by a man who had previously been in prison, can certainly be seen as physically threatening, humiliating, and frequent – three factors that indicate sexual harassment. They go on to basically to find that not only could a jury find the activity to be sexually harassing, but, certainly, because of the immediate link in a temporal standpoint between the time that she raised the complaint and the time that she was terminated could lead to the presumption that she was terminated for having raised the complaint.

Take Aways

  • Sexual harassment need not occur over a prolonged period of time if the actions are extreme.
  • Timing of claim of harassment and termination important- the closer together, the closer courts will scrutinize and view with skepticism.

Explained – I think that the principles that we take away from this case are:

  1. That sexual harassment to be actionable need not occur necessarily over a prolonged period of time if the intensity by which the actions are occurring is fairly extreme. And, in this case, we have an employee who was hired on one day, who suffered abuses over a four-day period, and then was summarily terminated. And, the 10th Circuit, which is not an overly friendly circuit towards employees I might add, says, with I think convincing clarity, that somebody who has experienced this kind of an action over a very short, contained period of time can well state an action for workplace harassment under Title 7 even though it is only four days in duration.
  2. That when evaluating retaliation claim and the timing of that retaliation claim, obviously the closer in time between the protected act on the part of the employee and the subsequent negative action or adverse action on the part of the employer, the more the courts will scrutinize and determine whether or not the employee has stated a claim for retaliation; in addition to which, unless the employer can come up with a legitimate business reason for the termination, the court is going to look very skeptically at something which occurred very close in time to the protection action. In this case, the employee complained about it and, on the same day that the employee complained about it, was terminated. And, what does the employer give or assert as the reason for the termination, that the employee swatted a fly too hard and slammed the door. In today’s litigious workplace, retaliation claims frequently accompany, as you know, substantive claims of discrimination or harassment. So, I would caution you, when evaluating the substance of a retaliation claim, look at your reason for terminating the employee, particularly if it’s a termination, and look at the time period between which the employee complains of the action and the time that you take for the adverse action. Obviously, the closer in time that those occur, the more scrutiny that a court may apply in determining whether or not the employee has stated a valid claim for retaliation.

So, those were the interesting developments in the last two weeks.


Next Telebrief: Wednesday, January the 8th. As always, if there are any questions, feel free to call me on my direct line – 410-209-6417, you can e-mail me at hkurman@offitkurman.com, and/or communicate with me any other way that you’d like to. If you would like additional PINS so that colleagues can participate, please contact Jeanne Hyatt at jhyatt@offitkurman.com or 410.209.6487. Executive Breakfast Sessions – 2014 Spring Series: Those of you who attended the executive breakfast sessions in October and November, these will be occurring again in March and April, or April and May. In early 2014, we’ll be announcing what those topics will be, and Jeanne will certainly be sending out announcements about that. Unless anybody has any questions, I wish everybody a happy and healthy holiday season and a great 2014, and we’ll reconvene on January the 8th. I want to make sure that you all know that all of these are recorded and transcribed and subsequently placed on our website, our website is www.offitkurman.com, for those of you who may miss a telebrief during the year. See you all later.