How many things can you find wrong with this picture?


Remember those “what’s wrong with this picture” games that we played as children? Something like this.

Last night, I found the employment law equivalent from this recent Sixth Circuit opinion.

[tl;dr: A colossal series of HR-compliance gaffes leads to a whopper of a jury verdict against the employer, which includes an award of punitive damages.]

Mad Men.

The plaintiff, in this case, was a parcel sorter. In 2011, she began reporting to a new male manager. His views on women in the workplace were, shall we say, dated.

For example, in August 2011, he suggested to the plaintiff in a one-on-one meeting that she demote herself to an administrative role because he felt “that females are better suited to administrative roles and males are better suited to leadership roles.”

Then, in January 2012, he suggested again that the plaintiff demote herself. He told her that she should “take the demotion, and if [she] didn’t, things would continue to get harder for [her].” The plaintiff responded that she did not want to be demoted. Before this meeting, the plaintiff had never been disciplined and had received several awards and certificates for her performance from 2007 to 2010.

Now some retaliation.

After this meeting, the plaintiff’s supervisors made her job harder.

  • Low-performing parcel sorters were placed in the plaintiff’s area or the area of other female lead parcel sorters, making the female leads look bad.
  • She was also not given enough workers.
  • Starting in the peak season of 2011, the plaintiff was given multiple, conflicting work assignments by her direct supervisors, then criticized for failing to complete all of them effectively; so were other female lead parcel sorters.
  • She received her first written discipline in July 2012, then another in September 2012; she contested the factual basis for both. She also received a poor performance review for fiscal year 2012; she contested the factual basis for this performance review as well.

A ham-handed HR response.

Follow the poor performance review, the plaintiff emailed a complaint to HR about the review and her supervisor’s chauvinist comments.

Someone named “Guy” (I can’t make this stuff up) from HR was summoned to meet with the plaintiff. The plaintiff told Guy that her manager was discriminating against her because he “did not want females in management.” Guy responded that he preferred the term “favoritism” to “discrimination” because “discrimination” was an “inflammatory word.” And rather than addressing the plaintiff’s concerns about discrimination, Guy told her that “maybe [she] just had a bad review, and to keep [her] head down, and let the managers do their job.”

Oh, it gets worse.

After complaining to HR, the plaintiff was demoted to parcel sorter on the ground that she was not a competent leader.

Then, the plaintiff filed her first charge of discrimination with the Equal Employment Opportunity Commission (EEOC). After she filed this complaint, she was “watched more closely by management. [Her] daily actions, [and her] work routine was scrutinized. [She] experienced write up after write up after write up.” She disputed the validity of various disciplinary actions she had received. In addition, at some point after she was demoted, she was told that she could not clock in more than three minutes early—other workers could clock in up to 15 minutes early and would receive extra pay as a result—and that she could not work more than eight hours in a day.

Much worse.

She filed a second EEOC charge.

Did things get better? Heck no.

  • The plaintiff testified that her managers instructed security guards to monitor how long she was taking on her bathroom breaks although she had not had any issues with her bathroom breaks previously.
  • She was disciplined for four purportedly unexcused absences even though she provided doctor’s notes excusing these absences and was on medical leave.
  • She was told by managers to remove her tinted safety glasses, which an ophthalmologist had directed her to wear.
  • Managers monitored the plaintiff’s conversations with other workers while she was on break. They would ask the other employees what they had talked about.
  • A manager asked her to approve changes to her timesheet that would make it look like she had clocked in for work at 11:09—making her late—when she had in fact clocked in at 11:03.
  • In 2014, for the first time since she started working at the company, she was not given extra hours during “peak time.” She received disciplinary writeups for leaving early when other workers left early without being subject to disciplinary action, or when she had cleared leaving with her supervisors in compliance with company policy.

Finally, in December 2014, she was fired, supposedly because she had left work early. The plaintiff had received no disciplinary writeups prior to getting the new manager in 20111, and 15 or 16 disciplinary actions in total after he became the manager.

Did this upset the jury? Yes, this upset the jury.

The jury awarded the plaintiff $85,600 in combined front and back pay, $30,000 in “non-economic damages,” and $403,950 in punitive damages, which the court later reduced to $300,000 because of statutory caps on punitive damages.

So, where did the company go wrong?

I mean besides practically everywhere: gender discrimination, retaliation on top of retaliation, poor response from HR, an ineffective anti-harassment policy/training. You name it; this had it.

I often tell clients that are sued for discrimination that, even with the best defenses, the road to victory isn’t easy. An employer needs to “run the table” to prevail. It must win on all counts (in this case, gender discrimination, retaliation (x2), and hostile work environment). That requires strong documentation, adherence to established policy and procedure, and witnesses that testify consistently with one another. Otherwise, there may be a hint of discrimination. Or, as in this case, the loathsome stench of it.

So, consider using this lengthy blog post as a training tool for managers and HR.



“Doing What’s Right – Not Just What’s Legal”
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