Quirky Question # 133

Our company provides private correctional and detention management to government agencies around the globe. One of our employees, a detentions officer, reported to our Ethics Officer that a co-worker called her work phone and asked her to engage in sexual intercourse and to be his "booty call" or "one night stand." She refused to file a formal written complaint. Our Ethics Officer spoke with the co-worker, who denied the allegations and stated instead that the complaining employee had sexually harassed him. Given the "he said, she said" nature of the complaints, the Ethics Officer told both employees to keep it professional at work.

A few weeks later, the employee again reported the same harassment to a supervisor. The supervisor said he would speak with the Ethics Officer, but nothing more was done regarding the employee's complaint. It is undisputed, however, that the co-worker did not bother the employee again following the admonition from the Ethics Officer to both them to keep it professional.

A few days after this second report of the same incidence, the complaining employee herself was suspended from employment as the subject of a federal investigation involving reports of misconduct including that the she had engaged in sex with detainees and brought contraband into the facility. The supervisor to whom the employee had complained the second time conducted the investigation. The investigation concluded with a sustained finding that the complaining employee was observed by Officers and detainees blowing kisses, flirting and rubbing up against detainees. The employee was terminated.

The employee has sued us, claiming that we engaged in unlawful employment practices by failing to take appropriate prompt and remedial action in response to her complaint of harassment, and that we retaliated against her for making the complaint by terminating her employment. Should we be concerned about losing this lawsuit?

Sarah's Analysis of Quirky Question # 133

As many of you who read this question undoubtedly recognized, the facts set forth in this question arise from the Western District of Washington December 10, 2009 decision in Ware v. GEO Group, Inc., 2009 WL 4844672. There, both Plaintiff and Defendant filed motions for summary judgment. As the decision illustrates, if this had been your company, you would have good reason to be concerned about the retaliation claim.

Under the much-discussed "cat's paw theory," an employer may be liable for illegal harassment or discrimination if a subordinate's bias could influence the discharge decision. According to Wikipedia, the term "cat's paw" derives from "'The Monkey and the Cat,' or 'Le Singe et le Chat,' a fable written by French poet Jean de La Fontaine, published in La Fontaine's second compilation of Fables, book IX, No. 17, in 1679. In the story, a monkey convinces an unwitting cat to pull chestnuts from a hot fire. As the cat scoops the chestnuts from the fire one by one, burning his paw in the process, the monkey eagerly gobbles them up, leaving none for the cat. Today, the term "cat's paw" refers to "one used by another to accomplish his purposes."

Ware claimed that she was suspended and eventually terminated in retaliation for her complaint of sexual harassment. Ware argued that GEO had failed to articulate a proper, legitimate, reason for its decision to terminate her employment while GEO stated that Ware did not meet her burden to establish a prima facie case of retaliation and that it provided proper grounds for Ware's termination. A prima facie case of retaliation under Title VII requires a plaintiff to demonstrate that: (1) she engaged in protected opposition to discrimination; (2) she suffered an adverse employment action; and (3) a causal link exists between the two. See Jordan v. Clark, 847 F.2d 1368 (9th Cir. 1988).

Washington law is substantially the same, requiring a plaintiff show: (1) she was engaged in a statutorily protected activity; (2) defendant discharged plaintiff or took some other adverse employment action against her; and (3) that retaliation was a substantial factor behind the adverse action. See Kahn v. Salerno, 90 Wa. App. 110, 129 (1988). The Court found that Ware was able to show that she: (1) engaged in statutory protected activity when she reported the inappropriate comments made by her co-worker asking her to engage in sexual intercourse and to be his "booty call" or "one night stand;" and (2) that she was discharged.

Two facts weighed against summary judgment in favor of GEO on the causation question relating to Ware's retaliation claim. The first was a simple timing argument: Ware was suspended from employment only days after her complaint to her supervisor regarding the co-worker's behavior. Second, and perhaps most important, was the fact that her supervisor conducted the investigation into the charges against Ware relating to the improper behavior as to detainees. This fact was extremely problematic for GEO, even though her supervisor did not initiate the charges against Ware, or make the final termination decision. Because he conducted the investigation with knowledge of Ware's complaint against her co-worker, the cat's paw theory applied to impute liability to the actual decision-makers. The Court stated: "The 'cat's paw theory' states that, even if the final decision maker is not knowledgeable of the protected activity, a subordinate's bias could, in one way or another, influence the ultimate decision to terminate the employee." See Poland v. Chertoff, 494 F.3d 1174, 1182 (9th Cir. 2007) ("We hold that if a subordinate, in response to a plaintiff's protected activity, sets in motion a proceeding by an independent decisionmaker that leads to an adverse employment action, the subordinate's bias is imputed to the employer if the plaintiff can prove that the allegedly independent adverse employment decision was not actually independent because the biased subordinate influenced or was involved in the decision or decisionmaking process.") The Court ordered that the causation issue proceed to trial.

Ware did not fare so well on her hostile work environment claim. Ware argued that GEO engaged in unlawful employment practices by failing to take "prompt and appropriate remedial action in response to her complaint of sexual harassment and hostile work environment." To prevail on that claim, Ware was required to show a genuine issue of material fact as to whether a reasonable woman would find the workplace so objectively and subjectively hostile toward women as to create an abusive working environment. See McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1112 (9th Cir. 2004). An employer is only liable for an employee's abusive acts if, after the employer learns of the alleged conduct, it fails to take appropriate remedial measures. Ware alleged that GEO did not take appropriate remedial action because her co-worker was not adequately "disciplined" where the Ethics Officer only told both the employees to keep it professional at work.

While Ninth Circuit courts have recognized that a mere oral reprimand is rarely sufficient to deter future harassment, they have recognized that in some instances it is enough. See Intlekofer v. Turnage, 973 F.2d 773, 779-80 (9th Cir. 1992). In this case, the Ethics Officer's memorandum noted that Ware did not believe it was necessary to file a formal complaint against her co-worker, and that the co-worker alleged that it was Ware who had sexually harassed him. The Court specifically noted, "Given Ware's reluctance to file a formal complaint and the 'he said, she said' nature of the dispute, [the Ethics Officer's] decision to orally reprimand both [employees] was appropriate 'discipline' proportionate to the seriousness of the alleged offense."

Perhaps even more important was the undisputed fact that all harassment stopped after the Ethics Officer reprimanded the employees. Given the effectiveness of the oral reprimand, the Plaintiff's refusal to file a formal complaint, and the disputed nature of the incident, the Court held that the employer was not required to do more, and granted GEO's summary judgment motion as to Plaintiff's hostile work environment claim.

What lessons can an employer learn from this case? First, ensure that any individual who conducts an investigation of employee wrongdoing has no knowledge of any complaints by that employee. In some cases it may be wise to retain an outside, independent investigator to avoid any possibility of the "cat's paw theory" creating potential employer liability. Second, in certain circumstances an oral reprimand may be sufficient as a matter of law to shield against liability for hostile work environment – assuming it is successful in ending the behavior and the complaining employee is not willing to formally complain about the harassment. In most cases, however, it is wise for the employer to do more than issue an oral reprimand. Finally, it almost always is important for an employer to ensure documentation of any actions taken.