A case from the Supreme Court of Appeals of West Virginia, the state’s highest court, demonstrates clearly why investigations of employee complaints of co-worker misconduct must be handled promptly and with care and sensitivity to the aggrieved employee’s legitimate concerns for retaliation by the accused.
In CSX Transportation v. Smith, 2012 W.Va. LEXIS 296 (W.Va. June 7, 2012), Angela Smith, a female trainmaster for CSX, alleged that a co-worker made derogatory comments about her sexual orientation. After she complained to the employer, someone (presumably the same co-worker) came to her house, pounded on her front door and yelled, “Come out b****. . . . You cost me my job [sic] and I am going to get you, come on out.” Smith started receiving almost daily threatening calls at her house, in which the anonymous caller would say, for example, “I’m not finished with you” and “Watch your back. I’m going to get you.”
Smith alleged that the employer failed to question the co-worker about the off-site conduct, and, while it demoted the co-worker based on the overheard derogatory comments, allowed the co-worker to use his union status (seniority) to transfer to a position where he would report directly to Smith. The employer declined Smith’s request for a transfer away from the co-worker and eventually put Smith on administrative leave “out of a concern for her safety and corresponding fear of what actions, if any, [the co-worker] might take in retaliation for being demoted.”
Smith filed suit alleging, among other things, that her employer failed to properly investigate and respond to her hostile work environment complaints and thereby promoted a sexually hostile work environment. The jury agreed and awarded Smith over $2.1 million in compensatory damages and punitive damages of $500,000. The employer appealed. The Supreme Court of Appeals of West Virginia affirmed the award, finding that the “cumulative effect” of the co-worker’s misconduct and the employer’s responses was sufficient to support the jury verdict and award of compensatory and punitive damages.
While it is difficult to say whether the employer in this case could have anticipated or prevented the derogatory comments that prompted this series of unfortunate events, there is no question that it could have investigated further and at least denied the co-worker’s transfer request. The employer’s reaction not only may have contributed to the aggrieved employee’s distress, but also may lend credence to the concern that it was insensitive to that employee’s apparently justifiable complaints, no matter where alleged offending conduct took place.