Tag Archives: Tenth Circuit

March 13, 2014

Harassment Training for Supervisors is Key in Minimizing Risk

Most employers today have policies prohibiting harassment. But if your supervisors and employees are not trained on those policies, and if harassment is allowed to occur, your organization could face significant liability.

Female Bailiff Alleges Egregious Sexual Harassment By Her Supervisor

Camille Kramer was employed as a jailor and later as a bailiff by the Wasatch County Sheriff’s Department. While working at the jail, male co-workers allegedly made offensive comments about Kramer’s breasts, she was subjected to sexually explicit materials on work computers and had to listen to graphic sexual conversations. Kramer complained to Sheriff Kenneth Van Wagoner, the head of the Sheriff’s Department. Sheriff Van Wagoner said he’d “take care of it” and proceeded to call a staff meeting at which he used Kramer as a volunteer to act out the exact harassing scenarios that she had reported to him. Van Wagoner told the group: “[t]hat’s harassment. Don’t do it.” When the harassment got worse after the meeting, Kramer complained again to the Sheriff, who told her she might want to avoid that area.

Kramer transferred to the courthouse to work as a bailiff. Sergeant Rick Benson, also a bailiff, supervised both Kramer and one other bailiff. According to Kramer, Benson subjected Kramer to a campaign of sexual harassment and sexual assault that ranged from demanding foot rubs to groping and rape. Kramer did not report Benson’s conduct to the Sheriff because Benson threatened her job if she said anything and she believed nothing would be done about it anyway.

Later, Kramer told female co-workers about the rape and assault. She also told them that she was having a consensual affair with another man and was pregnant from that relationship. Sheriff Van Wagoner found out about Benson’s sexual assault of Kramer and her pregnancy from one of Kramer’s co-workers. He assigned a detective who was not trained in human resources or in conducting sexual harassment investigations to look into the misconduct. The detective focused his investigation exclusively on finding out who fathered Kramer’s baby, not on Benson’s conduct. When it was learned that Kramer was involved with a married county firefighter, the detective urged Kramer to resign and Kramer was disciplined with her certification suspended for six months for “actions unbecoming an officer.” Although the Sheriff decided to terminate Benson, Benson resigned before that could happen.

Benson directly supervised Kramer’s work as a bailiff. He wrote her performance evaluations, which could cause her to be promoted, demoted or fired. He could create a corrective action plan for her which might include transfer, reassignment or separation, if he deemed her performance was substandard. At all times, however, the Sheriff was the final decision-maker and the only person who had the actual authority to take tangible employment actions against Kramer.

Kramer sued the County and the Sheriff for sexual harassment in violation of Title VII, among other claims. The district court granted summary judgment to the County, holding that because Benson did not have the actual authority to unilaterally fire Kramer, the County could not be vicariously liable for Benson’s conduct. It also ruled that supervisor status could not be based on Benson having apparent authority over Kramer because no reasonable juror could find that Kramer reasonably believed that Benson had the power to fire her. On appeal, the Tenth Circuit Court of Appeals reversed the grant of summary judgment in favor of the County and remanded the case to the trial court for further proceedings. Kramer v. Wasatch Cty. Sheriff's Office, No. 12-4058 (10th Cir. Feb. 25, 2014).

Delegation of Power and Apparent Authority

The Tenth Circuit pointed to wording in the Supreme Court’s recent case, Vance v. Ball State, 570 U.S. ___ (2013), to determine whether the County could be vicariously liable for Benson’s conduct. Vance held that a “supervisor” for purposes of determining employer liability for workplace harassment under Title VII includes only those individuals who have the authority to take tangible employment actions against the victim. Although that seemed like a bright-line test, the Tenth Circuit stated that if Benson had or appeared to have the power to take or substantially influence tangible employment actions or used the threat of taking such actions to subject Kramer to a hostile work environment, then the County could be vicariously liable for Benson’s severe or pervasive sexual harassment. Because the Court found sufficient evidence in the record that raised genuine issues of fact as to whether the Sheriff effectively delegated to Benson the power to cause tangible employment actions by relying on Benson’s recommendations and performance evaluations when making decisions regarding firing, promotion, demotion and reassignment, the Court reversed the grant of summary judgment to the County. The Court stated that even if the Sheriff took some independent analysis when considering input from Benson on employment decisions, Benson could qualify as a supervisor if his recommendations were among the proximate causes of the Sheriff’s decision-making. The Court also found that there was evidence to suggest that Kramer reasonably believed that Benson had the power to take tangible employment actions against her meaning Benson qualified as a supervisor under apparent authority principles.

No Tangible Employment Actions

If Benson is a supervisor under the definition established in Vance, the County would be strictly liable for Benson’s harassment if it resulted in a tangible employment action. Kramer asserted that four actions constituted tangible employment actions. First, she argued that Benson’s rape was a tangible employment action. The Court disagreed, stating that while the rape was inarguably a severe form of sexual harassment, Benson did not commit the rape in an official company action. Next, Kramer asserted that Benson prepared a negative performance evaluation of her and argued that was a tangible employment action. However, Benson improved the evaluation after speaking with Kramer and before submitting it to the Sheriff, so even though the threatened poor evaluation contributed to a hostile work environment, it did not constitute a tangible employment action. The Court similarly rejected the final two alleged employment actions, a denial of leave time and assigning Kramer to an unfavorable duty that denied her the training needed for a promotion. The Court found that the loss of one day’s leave time was not a “significant” change in Kramer’s benefits and the assignment to an unfavorable duty did not have a deleterious economic consequence for Kramer or reduce her opportunity for advancement. Finding that Kramer did not suffer a tangible employment action, the Court remanded for consideration of whether the County established the Faragher/Ellerth defense.

Teachable Moments from the Tenth Circuit

The Court’s thorough discussion of Benson’s conduct and what the Sheriff did/did not do when he learned of potential misconduct reveals many teachable moments for employers. First and foremost, make sure to train your supervisors and employees on prohibited forms of harassment, and how important it is to promptly and appropriately address issues when they arise. For example, when an employee reports harassing behavior, as Kramer did when she first worked at the jail, take it seriously. Do not simply tell workers to “stop it” or tell the person who complained to “avoid the area” or stay away from the perpetrators. Make sure that the person conducting the investigation is trained in workplace harassment investigations. Do not focus the investigation solely on the potential wrongdoing of the complaining party, as the detective did when trying to determine the father of Kramer’s baby. Talk to all parties implicated in the misconduct, including any witnesses who may have knowledge of the hostile work environment. If the investigation reveals harassing behavior, take immediate steps to correct it and prevent it from happening again. Follow up with the person who reported it to make certain your corrective actions are effective and that no further incidents have occurred. And finally, do not retaliate against the complaining employee. Learning from these missteps will go along way in minimizing your risk of harassment liability.

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July 21, 2011

Rehab and One Month of Sobriety Not Enough to be Considered Safe

By Jude Biggs

We all know all too well that illegal drug use and alcoholism cause terrific problems in the workplace, for the addict employee, co-employees and the business. We know that addiction is a medical problem that can sometimes be treated with success. Balancing the needs of the business and hope for the employee’s recovery can be tricky to say the least.

A recent case from the Tenth Circuit, which interprets the ADA for Colorado employers, illustrates the difficult balancing that occurs under the law. The ADA does not protect current illegal drug users, but it provides a safe harbor for those who have successfully completed a drug rehabilitation program (or otherwise rehabilitated successfully) and are “currently” or no longer engaging in the use of illegal drugs. But what does it mean to be “currently” free of illegal drugs? Read on to understand how to deal with employees who have used illegal drugs in the recent past.

Background

Peter Mauerhan worked as a sales representative for Wagner Corporation from 1994 until June 2005. In 2004, Mr. Mauerhan voluntarily entered an outpatient drug rehabilitation program, which met evenings and did not affect his work schedule. Wagner knew he was in the program.

On June 20, 2005, Wagner asked Mr. Mauerhan to take a drug test; he admitted he would test positive (for cocaine and THC/marijuana) but submitted to the test anyway. After testing positive, he was fired for violating Wagner’s drug policy, but was told he could return to Wagner if he could get clean. On July 6, 2005 he entered an inpatient program, which he completed on August 4, 2005. His rehabilitation counselor reported his prognosis at discharge as “guarded.”

The day after being discharged, Mr. Mauerhan asked to return to work at Wagner. He was told he could return, but not at the same level of compensation or with the same accounts he had served before. Mr. Mauerhan refused the changed terms. In later proceedings, Mr. Mauerhan asserted he remained drug free since completing the drug treatment program in July 2005.

In October 2005, he filed a charge of discrimination, asserting that he had been discriminated against on the basis of his status as a drug addict, and later filed a lawsuit asserting the same thing. Wagner asked the court to dismiss the case, arguing that Mr. Mauerhan was a current drug user within the meaning of the ADA at the time he had asked to be rehired. The Company also argued that even if Mr. Mauerhan had a protected disability at that time, the Company’s offer to reinstate him proved it had not discriminated against him. The district court dismissed the case, concluding that Mr. Mauerhan was not protected by the ADA as he was a “current” drug user at the time he reapplied for work.

How Long Must Someone Be Clean to be Considered a Former Drug User?

The Mauerhan case is an important one, as it is the first time the Tenth Circuit has provided guidance on how to determine the difference between a current or former drug user. Although the status of being an alcoholic or illegal drug user may merit ADA protection, the ADA and its implementing rules say that an employee or job applicant is not a “qualified individual with a disability” if he or she “is currently engaging in the illegal use of drugs” when the employer acts on the basis of such use. But the ADA also creates a safe harbor for those who are not currently engaging in the illegal use of drugs, by protecting employees who (1) have successfully completed a supervised drug rehabilitation program and are no longer engaging in the illegal use of drugs, or have otherwise been rehabilitated successfully and are no longer engaging in such use; (2) are participating in a supervised rehabilitation program and are no longer engaging in such use; or (3) are erroneously regarded as engaging in such use, but are not engaging in such use.

The Tenth Circuit admitted it was defining for the first time the scope of what “currently engaging” means. The district court had concluded Mr. Mauerhan failed to qualify for ADA protection when he reapplied for work, as he had abstained from illegal drugs for only one month; one month was, in the district court’s view, too short to be considered “not engaging in illegal drug use.”

The Tenth Circuit agreed with Mr. Mauerhan that one month of sobriety was not insufficient per se under the ADA, but agreed with Wagner that Mr. Mauerhan did not qualify for the safe harbor protections of the ADA. In so ruling, the Tenth Circuit acknowledged that no sister circuit courts used a bright-line rule for when an individual is no longer “currently” using drugs. Some courts require an employee to have refrained from drug use for a “significant” period of time. Others say the drug use must be sufficiently recent to justify the employer’s recent belief that the drug abuse remains an ongoing problem. Another circuit defines “currently” to mean a periodic or ongoing activity that has not permanently ended. The legislative history of the ADA also indicates a rule establishing a firm cutoff for protection is not appropriate.

As a result, the Tenth Circuit concluded that an employee is not protected under the ADA solely based on the number of days or weeks that have passed since the employee last illegally used drugs. Instead, it adopted the Fifth Circuit’s test that an individual is currently engaging in the illegal use of drugs if “the drug use was sufficiently recent to justify the employer’s reasonable belief that the drug abuse remained an ongoing problem.” Mere participation in a rehab program is not enough, although it helps bring the drug user closer to being protected. Rather, the individual must also be no longer engaging in drug use for a sufficient period of time that the drug use is no longer an ongoing problem. The court explained that, when an individual has not permanently ended his or her use of drugs, the drug use invariably is an ongoing problem. Certainly the longer employees refrain from drug use, the more likely they are to be protected under the ADA. Nonetheless, each case must be decided on its own basis, based on a variety of factors, such as the severity of the employee’s addiction, relapse rates for whatever drugs were used, the level of responsibility entrusted to the employee, the employer’s applicable job and performance requirements, the level of competence ordinarily required to adequately perform the job, and the employee’s past performance record. All of these factors assist the employer (and a court if a lawsuit develops) in determining whether it can reasonably conclude the employee’s substance abuse prohibits the employee from performing the essential job duties. As a result, the Tenth Circuit affirmed the district court’s dismissal of Mr. Maueghan’s claims. Mauerhan v. Wagner Corp., Nos. 09-4179 & 4185 (10th Cir. April 19, 2011).

Applying the Lessons of Maughan to Your Workplace

The Maueghan case gives employers some confidence that employees who have been recently released from a rehab program probably will not be considered former drug users entitled to the protections of the ADA. The more time that goes by, the more likely the employee will be thought of as a “former” user. However, don’t forget that other laws or approaches can come into play. For instance, although the Maueghan case did not involve a claim under the FMLA, remember the FMLA regards drug addiction as a serious medical condition for which an employer should allow medical leave and a right to return to work (under certain circumstances). In addition, remember that nothing in the ADA prevents an employer from disciplining or terminating an employee for drug-related misconduct. Given how complicated these situations can be, reach out to your attorney if in doubt, before making a move. It may save you a lot of headaches – and perhaps a hangover – in the long run.

For more information on this case or arbitration law in general, please contact Jude Biggs at jbiggs@hollandhart.com.

This article is posted with permission from Colorado Employment Law Letter, which is published by M. Lee Smith Publishers LLC. For more information, go to www.hrhero.com.