Suits In The WorkPlace

Dangerous Liaisons, Part I

    Some people just can't avoid taking risks in their professional lives.  This works well if you're a trapeze artist, professional bungee jumper, or Bill Clinton, but not if you're an at-will employee engaging in sexually provocative acts with your boss in front of his wife.  Such were the facts in a case decided by the 8th Circuit recently.

     The female plaintiff in this case, who rose from secretary to the highest-paid employee in the company (and we can only wonder about the basis for that quick ascent) admitted pinching the company owner on the bottom and getting pinched, in front of the owner's wife, who also worked for the company.  Not content with twisting the tiger’s tail, so to speak, the plaintiff also admitted leaving sexually suggestive notes for her boss around the office, even though she knew the aggrieved spouse was, well, aggrieved with her and might have the power to fire her.  Mrs. Owner actually found one of the notes by searching through a dumpster and pieced it together.  It was sufficiently inflammatory that she fired the plaintiff, but the owner reinstated her, only to fire her several months later.  At her termination, the owner told the plaintiff that his wife was making him choose between his “best employee or her and the kids."

     The plaintiff sued for gender discrimination and sued the wife for tortious interference with a business relationship.  She lost on both counts at the district court, and the 8th Circuit affirmed.  The court first noted that this was not a sexual harassment case, but rather a case claiming discrimination on the basis of an employee's admitted, consensual sexual conduct with a supervisor.  Noting that even the EEOC has not found Title VII applicable to cases involving sexual "favoritism" or so-called "disfavoritism", the 8th Circuit joined a number of other courts holding that an employer may terminate an employee for consensual sexual conduct that the employer (or his spouse) disapproves of.             

     For some reason, the court carefully distinguished this case from the situation where the employee did not engage in sexually suggestive conduct, but the manager’s spouse still perceived her as a threat to her marriage -- presumably the court felt this might move the case into a sexual stereotyping analysis.  In any event, absent a showing that men had engaged in similar conduct but had not been terminated, or that in office romance cases the employer had consistently fired the female involved, there was no evidence of gender discrimination sufficient to raise an issue of material fact.  The court also made short work of the tortious interference claim by noting that the motivation for the owner's wife to have plaintiff fired was not to damage the plaintiff in a business relationship, but to preserve the owner’s marriage.

     A nice general rule out of this case -- don't engage in sexually provocative behavior with your boss (or any other coworker) unless you're real good friends with the spouse involved.  I suppose that includes your own spouse, but, quite frankly, I'd advise against pushing those buttons under any circumstances. 

Send Lawyers, Guns and Money - Get Me Out of This

Here's one that'll blow you away:

Employer is a chemical manufacturer, producing, among other things, ammonium nitrate (Yes, that's Timothy McVeigh's fertilizer of choice, for those of you who thought that sounded familiar).

Union employee Anthony Bennett has a history of less than stellar behavior, cracking double-digits in the workplace warning column and earning the bad behavior seal of disapproval by allegedly beating women on the job and bringing his gun to work. Then, said noncompliant employee racks up an indictment for allegedly shooting his common law wife in front of their daughter. Newspapers later reported that police found his trusty sidearm in the employer's trash compactor.  Shockingly, co-employees and managers expressed their fear of the employee.

Grounds for concern? Maybe worthy of heightened security at the office? How about a dismissal? Or at least a suspension? Yeah, the employer thought so, too, and sent him a letter placing him on suspension until the charges were cleared. The union filed a grievance. Amazingly, the arbitration panel sided with the union and ordered reinstatement and back pay, but cited no authority or rationale for doing so.

The employer appropriately sought redress from the federal court. The court, in reviewing the arbitration decision, stated:

In the present case, not only did the arbitration panel not provide any reasons for its decision, but it also found that the only provision of the CBA cited, Article 44, was not violated.  The court is thus left to speculate and infer from the facts of the case what possible CBA provision the arbitration panel may have found violated.

And speculate it did.  Allow me to translate the above quote:  "since the arbitration panel failed to provide any good reason for its decision, the court will dig through the collective bargaining agreement until it finds a good after-the-fact justification for that decision."  And sure enough, this is what the employees of Independent Chemical can think about when coming to work in the morning:  "Because of the deference that must be accorded to the arbitration panel, the award cannot be vacated on the basis that the panel exceeded its authority."  Stating further that it was bound by the arbitration panel's decision, and that the reinstatement was not a violation of public policy, the U.S. District Court for the Eastern District of New York confirmed the arbitration award.  Indep. Chem. Corp. v. Local Union 807, Int'l Bhd. of Teamsters, E.D.N.Y., No. 1:05-cv-01987-DLI-JMA, 4/21/06). Here is a link to the decision, but you need a Lexis subscription to get it.

While some of the employee's criminal charges were ultimately dropped, sentencing for those that remain is scheduled for this month. So for the moment, alleged gun-toting, wife-shooting, explosive-handling Mr. Bennett is back at work.  His co-employees (who are also presumably dues-paying members of the same union that pursued the grievance), can, however, take a little comfort in this parting shot from the court:  "In reaching the decision that the arbitration panel's award, reinstating Bennett with back pay, does not violate public policy, the court does not condone Bennett's alleged violent and aggressive behavior."  Whew.  I feel better. 

We don't know about you, but something about this case makes us feel a little uneasy. And we're not just talking about arbitration or judicial process, either....