Discrimination again 886221

Last week, a federal jury in Pittsburgh awarded a former manufacturing employee, Sandra Robertson, over $13 million in damages in a gender discrimination and retaliation claim against her former employers, Hunter Panels LLC (“Hunter”) and its parent company (Robertson v. Hunter Panels, LLC et al.).  The bulk of this verdict was the $12.5 million that the jury awarded in the form of punitive damages.

While the punitive damages award in this case will likely be reduced due to the $300,000 cap on punitive damages under federal law, some states (such as New Jersey) do not cap punitive damages for state law employment claims.  Furthermore, since punitive damages awards are typically not covered by insurance, this type of award can be financially devastating.  Fortunately, this case provides several lessons for employers looking to avoid punitive damages, and reduce the risk of employment claims in general.

Plaintiff’s Allegations

Robertson, a former Master Sergeant in the U.S. Air Force, was a Shipping Supervisor for Hunter.  Robertson, who was the only female supervisor at Hunter’s plant, claimed that male supervisors harassed and ostracized her.  In March 2012, Robertson complained to HR that women were not treated equally, and that she believed her job was in jeopardy because of her prior complaints of gender discrimination.  Within a few weeks of that complaint, Hunter terminated Robertson, citing her poor job performance and abrasive management style.

Four Factors Contributing to the Verdict

  1. Evidence of Gender Discrimination. Robertson’s gender discrimination claim was supported by at least one male employee who stated that managers and supervisors at the plant felt threatened by Robertson’s success.
  2. Unnecessary E-mail Commentary. In July 2011, Robertson told an HR manager that she wanted to file a harassment complaint. The next day, the plant manager wrote an e-mail that Robertson was “going over the top” by complaining. After Robertson stopped complaining and six months passed, she received a positive evaluation. However, when Robertson complained about harassment in 2012, male managers commented, in e-mails, that she “may be losing control again” and “this is crazy.” Robertson was terminated within a few weeks of her second complaint.
  3. Subjective Termination Reason. Hunter’s claimed that Robertson was terminated because of her unprofessional behavior towards employees and other supervisors. Robertson was able to minimize the strength of this defense by claiming that male employees and managers had a negative view of assertive and successful women.
  4. Alleged Fabrication of Documents. Robertson’s personnel file contained a number of memos documenting her alleged poor performance. Robertson’s attorney obtained the Microsoft Word files for each memo, and hired a forensic expert to review them. The expert concluded that several of the memos were created or modified after Robertson complained. Around the time of Robertson’s second harassment complaint, the plant manager wrote an e-mail predicting that documents critical of Robertson’s performance “will end up being generated.” Robertson’s attorney argued that Hunter backdated these documents to justify her termination.

Four Reasons Why this Case Matters for Employers

  1. Take Complaints Seriously. In harassment and retaliation claims, Plaintiff’s attorneys often argue that the employer ignored or covered up employee complaints. Evidence of failure to respond to complaints can be more damaging than original allegations, especially when front-line supervisors feel (rightly or wrongly) that employees are “making a big deal” of minor issues. Make sure your supervisors and employees are trained to promptly report harassment and discrimination complaints.
  2. Limit E-mail Commentary. While “smoking gun” evidence is rare in employment cases, e-mails containing “off the cuff” comments about an employee can be extremely damaging when taken out of context in later litigation. Employees should be trained regarding proper e-mail use, and supervisors should know when to discuss sensitive issues in person.
  3. Lock in the Timeline. To avoid any argument that documents were backdated, print all documents regarding employee performance, counseling, or discipline, show them to the employee, and instruct the employee to sign and date them. If the employee refuses to sign, or the document must remain confidential, the drafter can e-mail the file to appropriate managers, creating a digital “time stamp.”
  4. Avoid Vague Termination Reasons. While at-will employees can technically be terminated for any reason, subjective reasons such as “poor interpersonal skills” or “not a good fit” allow a terminated employee to argue that discrimination or retaliation was the real cause. When possible, support termination decisions using measurable criteria such as poor work productivity, or specific violations of employer policies.

This case is a good reminder of the importance of vigilance about electronic communications in the workplace.  Employers should consult with counsel and make sure their policies and procedures regarding electronic communications, employee discipline, and harassment and discrimination, are up-to-date and are being properly enforced by supervisors and management.