500 Eagle Gate Tower
60 East South Temple
Salt Lake City, Utah 84111
In a recent case out of Utah’s federal district court, Susan Robinson claimed that her employer, Sunroc Corp., discriminated against her based on her sex, in violation of Title VII. The facts of the case, however, paint a picture of an employer who appropriately responded to Robinson’s complaints, and made hiring and firing decisions based upon legitimate business reasons untainted by discrimination. Thus, although Title VII gives individuals the right to sue employers for discrimination, when one reads the court’s decision denying all of her claims, one wonders why someone did not tell Robinson to wake up, face the facts, and not waste her and Sunroc’s time and money on a fruitless lawsuit. The following is written with apologies to Simon & Garfunkel, the Beatles, Bob Marley, Pink Floyd, and Madonna.
On May 9, 2005, H.E. Davis hired Susan Robinson. Davis later merged with Sunroc Corp. Robinson’s employment was terminated in mid-December 2005, but Sunroc rehired her two months later. After being rehired, Robinson began learning to operate new equipment, and by July 2006 she was earning $12.00/hour.
As a Sunroc employee, Robinson worked at various construction sites where Sunroc was a subcontractor. At the sites, Robinson frequently interacted with employees of other subcontractors.
Beginning on approximately April 17, 2006, Robinson started having run-ins with German Paladini, an employee of a different subcontractor who was also working on the same construction project. Paladini made lewd jokes, used crude language, repeatedly asked Robinson to have sex with him, and physically cornered Robinson. On April 27, 2006, Paladini jumped into Robinson’s truck uninvited. Finally, in late April 2006, Paladini slipped a note into Robinson’s pocket that read: “If seeing you was meaning of life, and not seeing you was meaning of dyeing [sic], I prefer to die and see you than to live and not have you . . . .”
After receiving the letter, Robinson requested Sunroc to transfer her to a new job site. Robinson was immediately reassigned to a job site away from Paladini. Sunroc also contacted Paladini’s employer regarding Paladini’s behavior. In response, Paladini’s employer suspended him. After her transfer, the sexually-intimidating behavior Robinson experienced stopped.
The new job site, however, had two other problems from Robinson’s point of view. First, the new job site did not have an on-site bathroom. Sunroc had decided, before Robinson began working at the site, not to put any bathrooms at this job site because the job would be completed in one month and there were several bathrooms within walking distance.
Second, while working at the new site, Sunroc gave Robinson a steel-drum roller (designed to roll asphalt) instead of a rubber-wheeled roller (designed to roll dirt) and told her to use the steel-drum roller to roll dirt. Robinson injured her back while using the steel-drum roller.
After working at the new job site for approximately one week, Robinson developed a kidney infection that required hospitalization. Thus, she took leave from May 9, 2006 to May 23, 2006. Sunroc did not classify this leave as leave under the Family Medical Leave Act (FMLA), and she received worker’s compensation benefits for this period.
In December 2006, Sunroc terminated Robinson, but retained Shawn Shepherd, a male employee who had more experience laying pipe at construction projects. After her termination, Sunroc ran ads in local newspapers advertising the job from which Robinson was let go.
In late 2006 or early 2007, Robinson filed a discrimination complaint with the EEOC. In an effort to settle her claim, Sunroc proposed a settlement where Robinson would have to agree to give up any claim to employment at Sunroc. Robinson rejected this proposal. Despite the rejected settlement offer, in March 2007 Sunroc offered to re-employ Robinson with the same duties, pay and hours. Robinson rejected this offer.
Because the EEOC complaint failed to reach Robinson’s desired resolution, she filed a lawsuit in Utah’s federal district court alleging multiple violations of Title VII, the FMLA, and the Equal Pay Act (EPA). Ultimately, Robinson failed on all of her claims.
Robinson first claimed that Sunroc had discharged her in a sexually discriminatory manner. Although Robinson was, (1) a woman, (2) qualified to perform her job, and (3) terminated despite her qualification, and despite the fact that her job was not entirely eliminated after her discharge, the court found that there was a legitimate non-discriminatory reason for terminating Robinson. Sunroc produced evidence that Robinson was terminated because (1) the anticipated winter work did not materialize, (2) Shepherd had more experience than Robinson, and (3) the ads that ran after her termination had been placed in advance of Robinson??s termination. Robinson did not produce any evidence to show that these legitimate reasons for letting her go were pretextual, or unworthy of belief.
Next, Robinson argued that she had suffered a hostile work environment because of her sex. She based this argument on the fact that the new job site had no bathrooms. The court rejected this argument because the decision not to have bathrooms at the site was made before Robinson began work there, there were bathrooms readily available close by, and Robinson only lacked a Sunroc-provided bathroom for approximately six or seven days. The court decided, therefore, that Robinson could not show the missing bathroom was the result of sexual discrimination or created a hostile work environment.
Third, Robinson claimed that Sunroc should be held responsible for Paladini’s harassment. The court rejected this claim because Sunroc’s response in quickly removing Robinson from the work project and notifying Paladini’s employer was a reasonable and adequate response to Robinson’s report of Paladini’s behavior.
Fourth, Robinson claimed that Sunroc fired her in retaliation for complaining about sexual harassment. Robinson argued that Sunroc retaliated against her by creating a hostile work environment. In particular, she claimed that the lack of bathrooms, the requirement that she use the steel-drum roller, and her transfer to the new job site after complaints of Paladini’s behavior all were done in retaliation for her complaints about the sexual harassment she reported. The court rejected these arguments, however, for similar reasons to those already discussed.
As previously mentioned, Robinson presented no evidence that the lack of bathrooms was related in any way to her sexual harassment complaints. Regarding the steel-drum roller, there was nothing beyond the temporal proximity of her sexual harassment complaints and the requirement to use the steel-drum roller to link the one to the other. And the job site transfer cannot be considered a retaliatory event given that it was a reasonable response to remedy Robinson’s complaints about sexual harassment.
Robinson was unable to provide any evidence to show that her ultimate termination from Sunroc was not the result of a legitimate business decision. The fact that Sunroc offered to re-hire Robinson in 2007 only weighed in favor of deciding that Sunroc’s decision to terminate her was legitimate and non-discriminatory. Thus, Robinson failed on all of her alleged Title VII claims.
She also failed to keep her FMLA and EPA claims alive. The court rejected her FMLA claim because she had not been employed for at least 12 months prior to requesting FMLA leave, as required by the FMLA. Her EPA claim failed because she did not provide any evidence that male employees performing equal work received more pay than female employees. Indeed, there was uncontradicted testimony from Sunroc that the average hourly rage for Sunroc’s male employees during August 2006 was $11.63/hour. Robinson’s wage was $12.00/hour.
Robinson v. Sunroc Corp., 2010 U.S. Dist. LEXIS 51913 (D.C. Utah, May 24, 2010).
Although Robinson’s claims failed because she simply produced no evidence to support any of her claims or to call into doubt the legitimate nature of Sunroc’s decision to terminate her, Sunroc conducted itself in an appropriate manner in dealing with Robinson’s claims of sexual harassment by Paladini. Sunroc quickly transferred Robinson when she requested to be transferred, and the transfer effectively ended the sexually-inappropriate behavior that she had experienced. Furthermore, although Paladini was not a Sunroc employee, Sunroc took the extra step of reporting Paladini’s behavior to his employer. Thus, Sunroc took proactive steps to quickly, appropriately, and effectively care for and protect its employee, something that all employers would do well to learn and do.
Q:A sticky situation has come to light a very hot love affair between one of our high-level married employees and a high-level (also married) employee of a major client. Aside from the awkward moments the relationship is creating, we’re afraid that “pillow talk” could lead to dissemination of proprietary information. Can we draft and enforce a policy prohibiting employees from dating clients and vendors?
A:You can certainly draft a policy prohibiting employees from dating clients and vendors. However, in this instance, it would be like locking the barn door after the cows were gone. Presumably, you already have a conflict of interest and/or a confidential business information policy that could implicate this romance. Presuming that you have such policies, I would tell your employee that carrying on the relationship with an employee of a major client constitutes a conflict of interest and it should stop.
Q:As part of the Patient Protection and Affordable Care Act, employers with more than 50 employees are required to “furnish a private space, other than a restroom, for mothers to express milk.” We initially determined that a very large private restroom accessible only to our employees would satisfy the requirement, but now I see that it isn’t supposed to be a bathroom. The room has a chair, which would allow the mother to sit (on the chair rather than the toilet) to express milk. Do you feel this is an acceptable location, or do we need to find another option that isn’t a restroom?
A:The language of the amendments to the FLSA that you refer to specifically state that such a location may not be a bathroom. So, I suppose the question is whether the room is a mother’s lounge with the convenience of a toilet, or whether it is a bathroom. Only you can make that judgment. If you are going to designate this room as the mother’s lounge, I would prohibit non-nursing individuals from using the room, decorate the room with more than a chair, install a changing area, and if possible, a refrigerator to store the expressed milk. If the room is not large enough to accommodate these types of changes, I think it really is a bathroom.
Q:We have an employee who has a son with autism. The child is in middle school and appears to be high-functioning. However, he occasionally acts out or runs away from school. The school contacts the employee about once a week asking for her assistance to calm the child or help find him when he runs away. The employee has provided medical certification, and we have designated her leave to care for her son as Family and Medical Leave Act (FMLA) leave. When she has to help calm the child, she’s providing psychological comfort, which is covered by the FMLA. However, when she takes time off to find him, it’s debatable whether the absence is FMLA-qualifying. Am I splitting hairs?
A:Yes, I think you are splitting hairs. Obviously, this employee needs time off from work to locate and care for the child. I would designate the leave as FMLA. That way, if the time off becomes excessive, it can at least be limited by the twelve weeks of leave available under the FMLA.
Q: I have an employee whose job requires him to travel 75 percent of the time. Most of his travel is to other states. He came to me yesterday and told me his wife is being deployed to the West Coast for three or four months. During that time, he will only be able to travel within the state because he needs to be close to home to take care of his kids. He couldn’t give me any details but stated he knows I need to know because of the Uniformed Services Employment and Reemployment Rights Act (USERRA).” We have only 55 employees, and I’ve never dealt with USERRA before, but from what I can tell, it protects employees who are deployed and doesn’t pertain to spouses. I don’t have to make any concessions for him under USERRA just because his wife is being deployed, correct?
A:You will need to accommodate the employee under the FMLA which grants additional FMLA leave to family members due to a qualifying exigency relating to a covered family member in military service.