A female sales executive at a multi-state trash collection business struck out with her Title VII claim of a hostile work environment but stands to collect at least $1.23 million for a retaliatory firing under a ruling this month by a federal judge.
Jennifer Taylor is asking for even more, saying the judge overlooked evidence about the size of the defendant employer that could open the door for an even larger award of compensatory damages.
U.S. District Judge Gerald Bruce Lee decided the case without a jury in Taylor v. Republic Services Inc. (VLW 013-3-462). One of Taylor’s lawyers explained the company had her sign away her right to a jury while she was employed.
Her claims brought mixed results in the bench trial.
Despite describing several incidents in which male colleagues made sexual advances, Taylor failed to muster sufficient evidence to support some of her accounts of harassment, Lee said. Taking all of the evidence together, the alleged misconduct was not sufficiently severe or pervasive to constitute a hostile work environment, the judge said.
Nevertheless, Republic retaliated against Taylor when it fired her just 42 days after she complained of her treatment at the company, Lee decided.
Since Taylor was unable to find work at a comparable salary, Lee awarded back pay of $377,734, five years of front pay totaling $804,791 and $50,000 in compensatory damages for her emotional distress.
The award of compensatory damages was capped under federal law at $50,000, Lee said, because Taylor did not present evidence to support her allegation that the employer had more than 100 employees.
The record proves the company’s larger size, Taylor argued in a post-trial motion. She pointed to testimony of Republic managers, saying the evidence showed the employer actually had at least 24,000 employees.
Taylor asked Lee to reconsider and increase the compensatory damage award to $300,000, the maximum allowed against companies with more than 500 employees.
A hearing on the request for reconsideration is set for Oct. 11.
Sexual advances alleged
Taylor hired on with Allied Waste Industries Inc. in Michigan in 2007. After Allied merged with Republic Services Inc. in 2008, Taylor relocated to Virginia to work for a subsidiary, Republic Services of Virginia LLC.
Taylor oversaw a team of 13 sales people in 14 states, all promoting the sale of contracts for trash collection to local governments and businesses.
Taylor claimed she had an unexpected and unwanted encounter with a male colleague in 2008 before she ever moved to Virginia.
After a work-related event at a restaurant, Taylor drove a newly promoted human relations executive to his hotel.
Because he would be moving to the area, Taylor invited the man to stop by her home the next time he was in town, she alleged.
To her surprise, he showed up on her doorstep at 11:30 that very evening.
He insisted on a drink, and Taylor complied. But Taylor refused when the man asked to see the upstairs level of her home. The man left at her request without incident, but she perceived the visit as an unwelcome sexual solicitation.
The same human relations exec later proposed sex with Taylor in what she interpreted as a deal to avoid a job disciplinary action, she claimed.
Taylor also contended she overheard a manager refer to her as a “f—ing bitch” during a company recreation event.
Taylor had offered sufficient proof that those three “distasteful” incidents occurred, but together they failed to establish the “severe and pervasive” misconduct required to prove a hostile work environment, according to Lee.
Retaliation claim proved, judge ruled
Even though an employee may not have a harassment claim that stands up under courtroom scrutiny, a good faith employment complaint can serve as the basis for a claim of retaliation, Lee said.
Taylor had raised an objection to what she perceived as punishment for her report of the unwelcome 2008 visit to her home. Her perception of retaliation was objectively reasonable under the circumstances, Lee said.
The parties clashed at trial over whether Taylor was terminated or departed voluntarily.
On Aug. 12, 2011, Taylor reported she believed she was subjected to retaliatory actions as a result of reporting the unwanted visit to her home. At a meeting on Aug. 29, Taylor was sent home to wait for further instructions.
Despite a flurry of emails from Taylor, she was not allowed to return to work and her status remained uncertain, Lee said.
On Sept. 6, a personnel manager sent Taylor a severance agreement for review. Taylor’s last day of employment was Sept. 23.
The short time frame between Taylor’s complaint and her termination, combined with the fact that the personnel manager never communicated with Taylor’s supervisors about her job performance, demonstrated a sufficient connection to make a prima facie case for retaliation, Lee said.
Republic said it rebutted Taylor’s retaliation claim with evidence showing Taylor was allowed to voluntarily quit because of performance and trust issues. A manager wrote she was “not meeting expectations” six months before her departure and was critical about Taylor’s performance in August 2011.
Lee found Republic’s arguments “less than credible.” While Lee noted a dispute over whether Taylor rejected an option to remain in her position, he found no dispute that the company sent her a severance agreement which she rejected.
Taylor then was told that returning to Republic was no longer an option and she was terminated, Lee said.
“The idea that Ms. Taylor voluntarily agreed to leave the Company is wholly unsupported,” the judge wrote.
Lee said if the personnel manager had conducted an independent evaluation of concerns about Taylor, she would have discovered Taylor was a “strong performer with a track record of success.”
“The undisputed record demonstrates that Ms. Taylor had met and exceeded the Company’s 2011 annual goals by August 2011 and was on track to receive bonuses,” Lee wrote.
“In essence, the Court finds that Ms. Taylor would still be gainfully employed at Republic had she not sent an email … expressing her suspicions of discrimination, harassment and retaliation,” Lee said.
New standard now applies
Taylor would have prevailed even under a new, tougher test for retaliation claims, her attorneys said.
Elaine C. Bredehoft of Reston, one of Taylor’s lawyers, said the U.S. Supreme Court announced a strict standard for proof of retaliation in a decision handed down just over a month after the five-day trial in May.
Plaintiffs now must show their termination would not have occurred “but for” their complaints about employer misconduct, Bredehoft said. The new standard was announced June 24 in University of Texas Southwestern Medical Center v. Nassar.
Taylor still would have proved her case, her lawyers said.
“We felt very confident” Taylor was able to show the “only reason” for her termination was her complaint about harassment, said Carla D. Brown, another member of Taylor’s legal team.
Nevertheless, the result was a “big win,” Bredehoft said. Taylor is a “very deserving client with very difficult facts,” she said.
Republic attorney Raymond C. Baldwin of Washington did not return a call for comment.
From <http://valawyersweekly.com/2013/09/26/title-vii-plaintiff-wins-1-23m-for-retaliation/>
