W.Va. Supreme Court finds use of "n" word not "unwelcome"

Recipients of workplace harassment are not always innocent of engaging in similar conduct themselves. Sometimes, they invite, and even incite the harassment. That was found to be the case in Erps v. W. Va. Human Rights Comm., No. 34262 (W.Va. Supreme Court, June 22, 2009).

The respondents, Sue J. Erps and William G. Erps, d/b/a Improvements Unlimited were found by the Human Rights Commission to be liable to their employee, Victor Peoples, for claims of hostile work environment and retaliatory discharge arising from a single June 16, 2004, workplace incident. The HRC ordered the Respondents to pay the Commission's costs in the amount of $1,854.06, and to pay Peoples $24,085.30 in lost wages, $3,813.51 in interest, and the statutory maximum $5,000.00 in incidental damages.

Factual Background

The incident occurred between Victor Peoples, a black employee, and Wayne Bragg, his white coworker. Although there had been no prior tension, arguments or problems between the two, Mr. Peoples picked on Mr. Bragg the morning of June 16, calling him names such as “white trash” and “honky.” According to Mr. Bragg, the racially-charged name calling angered him. Mr. Peoples continued his goading of Mr. Bragg by making fun of the way he talked. At some point, Mr. Peoples criticzed the work Mr. Bragg was doing, and Bragg responded by saying, "You say another word I'll cut your f***ing head off with this shovel, n*****."

The men approached their supervisor, who ordered them back to work in separate locations. Peoples was not satisfied with the response and continued to ask him what he was going to do about Bragg's comment. The supervisor replied, “That's done, over, get back to work.” When Peoples persisted in his demand for immediate action, he was told to get back to work or he was fired. Peoples would not go back to work and he was fired.

Peoples filed a complaint with the West Virginia Human Rights Commission alleging race discrimination and retaliation. After a public hearing, the ALJ entered an order finding the Erps and Improvements Unlimited liable for fostering a hostile work environment, retaliatory discharge for engaging in a protected activity, i.e., complaining about Mr. Braggs' comment which was characterized in the order as sufficiently severe to constitute racial harassment, and retaliation for filing a complaint with the Commission. The HRC ruled in favor of Mr. Peoples, and the Respondents appealed.

Supreme Court Reverses In Part

On appeal, the West Virginia Supreme Court reversed the HRC's monetary damages award, finding that the HRC erred in imposing liability for a racially hostile work environment, and for finding a retaliatory discharge. It affirmed the HRC's finding of post-discharge retaliation, but the HRC had not awarded any damages for that violation, and the Court prohibited it from doing so because the issue was not appealed by Peoples.

Clarification of "Unwelcomeness"

The Court noted that it had not previously addressed what constitutes "unwelcome" conduct in the workplace. "In light of the Commission's findings relative to Mr. Peoples' actions precipitating Mr. Bragg's comments on June 16, 2004, we find it necessary to address this element of a hostile work environment claim further."

In reviewing the racial harassment incident, the Court was careful to note that although the use of the "n" word is deplorable, it does not automatically create a hostile work enviroment. Citing with approval an Oregon Court of Appeals decision in Garcez v. Freightliner Corporation, 72 P.3d 78 (Ore. Ct. App. 2003) (Title VII), the Court noted that "'[M]ere utterance of an ethnic or racial epithet which engenders offensive feelings in an employee would not affect the conditions of employment to [a] sufficiently significant degree to violate Title VII." The court will not assume that even use of the "n" word is unwelcome. Instead, the Court instructed trial coourts to inquire into the "totality of the circumstances, including examination of the plaintiff's own actions."

In new syllabus points 5 and 6, the Court set out a new standard to determine "unwelcomeness" of alleged harassment:

5. In order to constitute harassment and satisfy the first prong of a hostile work environment claim as set forth in syllabus point 2 of Fairmont Specialty Services v. West Virginia Human Rights Commission, 206 W. Va. 86, 522 S.E.2d 180 (1999), the subject conduct must be unwelcome in the sense that the employee did not solicit or incite it, and in the sense that the employee regarded the conduct as undesirable or offensive.

6. When a plaintiff bringing a hostile work environment claim pursuant to the standards enunciated in syllabus point 2 of Fairmont Specialty Services v. West
Virginia Human Rights Commission, 206 W. Va. 86, 522 S.E.2d 180 (1999), has solicited, incited or participated in the subject offensive conduct, the plaintiff must introduce evidence indicating (1) that he or she ultimately informed the involved co-workers and/or supervisors that future instances of such conduct would be unwelcome, and (2) that conduct thereafter continued. Where such evidence is produced, a question of fact is created as to whether or not the conduct was unwelcome.

The Court concluded that "[u]nder the established law outlined above, the Commission's order holding the appellants liable for a racially hostile work environment cannot stand. Mr. Peoples failed, as a matter of law, to satisfy the first element of a hostile work environment claim by failing to put forth evidence from which a reasonable fact-finder could conclude that the subject conduct was unwelcome."

Retaliatory Discharge

The Court went on to conclude that the HRC was "clearly wrong" in finding that Mr. Peoples was terminated in retaliation for complaining about the harassment. Based on the evidence presented at the public hearing, the Court found that even if Mr. Peoples were able to make out a prima facie case of retaliatory discharge, he presented no evidence that the employer's proffered reason for discharging him (that he refused to get back to work) was pretextual.

Retaliation for Filing His Complaint

The HRC had also found that Improvements Unlimited subjected Mr. Peoples to retaliation for filing a complaint with the Commission through a series of actions such as following him, staring at him and offering him money to dissuade him from pursuing his complaint. (Some details of the conduct appear in footnotes 19 and 20.)

The Court concluded that "[b]ecause the findings on this issue are made upon credibility determinations in light of competing testimony, they are to be afforded deference. Accordingly, we affirm the finding that Mr. Peoples was intimidated and retaliated against for filing his complaint with the Commission." However, because Peoples was not awarded monetary damages for this alleged retaliation and intimidation and did not appeal this aspect of the order below, he was not entitled any monetary award.

The Court specifically ordered that "[t]he Commission may not, hereafter, award monetary damages for this claim because monetary damages were not previously awarded for this specific retaliation claim in the appealed orders and no exception to this lack of monetary damages being awarded on this issue was taken by Mr. Peoples." This resulted in an almost complete victory for the employer.

Justice Benjamin's well-written opinion highlights the importance of the plaintiff's own conduct in contributing to workplace harassment. The HRC and the trial courts cannot simply ignore the Plaintiff's own racially hostile conduct.

New feature: To see a word diagram of this case, click here. Wordle is a service that automatically generates a "word cloud" that gives greater prominence to words that appear more frequently in the source text. It's an interesting way to look at the importance of various issues in case authorities.

W.Va. Lawyer Disciplinary Board releases legal ethics opinion on metadata

On June 10, the West Virginia Bar released its ethics opinion on What is Metadata and Why Should Lawyers Be Cautious? Legal Ethics Opinion 2009-01 (PDF).

The opinion addresses two problems: (1) whether an attorney has a duty to remove confidential metadata from documents he or she is transmitting to others, and (2) whether an attorney who receives inadvertently produced metadata has a duty not to view it. The Board concluded:

The Board finds that there is a burden on an attorney to take reasonable steps to protect metadata in transmitted documents, and there is a burden on a lawyer receiving inadvertently provided metadata to consult with the sender and abide by the sender's instructions before reviewing such metadata.

The opinion suggests a few ways to remove metadata from documents being produced to third parties, most of which involve making an image or copy of the document and faxing, scanning or mailing it. Metadata removal tools are much more efficient.

It should be noted that even PDFs contain metadata. However, because fewer attorneys work with PDFs for drafting and revising documents, they rarely contain any confidential metadata. However, as more and more attorneys use the full version of Adobe Acrobat to modify PDFs with highlighting, comments, and notes, that will change. Many metadata removal tools that automatically scrub outgoing file attachments will ignore PDF attachments. They shouldn't. If you are producing scanned PDFs that you have marked up with electronic sticky notes, be sure to use the Examine Document feature in Acrobat 8 or later to remove the notes and comments. The process can be run in batch mode to remove metadata from multiple documents at once.

The opinion is careful to place a burden on receiving lawyers to consult with opposing counsel about metadata they receive where the receiving lawyer has "actual knowledge that metadata was inadvertently sent." Short of the sender telling you he inadvertently sent the metadata, that may not always be clear. The opinion simply says that "it's always safer to notify the sender before searching electronic documents for metadata."

What is Metadata and Why Should Lawyers be Cautious? - W.Va. Legal Ethics Opinion 2009-01

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3d Circuit clarifies definition of "management-level"

Sexual harassment cases often involve employees complaining of harassment to low-level supervisors. When no remedial action results, the employee claims the employer "knew or should have known" of the harassment for months, but did nothing about it.

Courts generally hold that an employer "knew or should have known" about workplace sexual harassment where management level employees had actual or constructive knowledge about the existence of a sexually hostile environment. See, e.g. Katz v. Dole, 709 F.2d 251, 255 (4th Cir. 1983). The question then becomes, who is a "management level" employee?

Yesterday, the the Third Circuit, in a well-reasoned opinion, added clarity to this issue. In Huston v. Procter & Gamble Paper Products Corp., No. 07-2799 (June 8, 2009) (PDF), the plaintiff claimed she was sexually harassed by co-workers. She argued that P&G knew about the harassment because she complained to two line supervisors who lacked the power to hire and fire employees, or discipline them. They did hold "supervisory" positions of process coach and machine leader.

The Third Circuit agreed with the district court that the two employees were not management-level employees. In doing so, it applied ordinary agency law principles from the Restatement (Third) of Agency:

For purposes of determining a principal’s legal relations with a third party, notice of a fact that an agent knows or has reason to know is imputed to the principal if knowledge of the fact is material to the agent’s duties to the principal, unless the agent (a) acts adversely to the principal as statedin § 5.04, or (b) is subject to a duty to another not to disclose the fact to the principal. Restatement (Third) of Agency § 5.03 (2006) (emphasis added).

Based on this, the court concluded that

an employee’s knowledge of allegations of coworker sexual harassment may typically be imputed to the employer in two circumstances: first, where the employee is sufficiently senior in the employer’s governing hierarchy, or otherwise in a position of administrative responsibility over employees under him, such as a departmental or plant manager, so that such knowledge is important to the employee’s general managerial duties.

* * *

Second, an employee’s knowledge of sexual harassment will be imputed to the employer where the employee is specifically employed to deal with sexual harassment. Typically such an employee will be part of the employer’s human resources, personnel, or employee relations group or department.

* * *

Thus, in requiring that a “management level” employee have knowledge of allegations of co-worker sexual harassment as a pre-requisite to imputing that knowledge to the employer, we require that this knowledge have reached an employee in the governing body of the entity, as opposed to merely a supervisory employee in the labor force. We clarify that mere supervisory authority over the performance of work assignments by other co-workers is not, by itself, sufficient to qualify an employee for management level status. It is not uncommon for non-managerial co-workers to be organized into groups where one worker is designated to oversee the performance by others of a specific task. But to the extent that such a supervisor does not have a mandate generally to regulate the workplace environment, that supervisor does not qualify as management level.

Employees often claim that their complaint of harassment to their "immediate supervisor" suffices as a complaint to "management" because that supervisor, even though he may be only a line supervisor, has a duty to report the harassment up the chain to the top-level managers. This opinion clarifies that reporting sexual harassment to "any old supervisor" is insufficient to impute liability to the company in hostile environment sexual harassment cases.

U.S. Supreme Court holds Benjamin should have recused himself

The United States Supreme Court held today by a 5-4 vote in Caperton v. A.T. Massey Coal Co., No. 08-22 (U.S. Supr. Ct. June 8, 2009) that the Due Process Clause required Justice Brent Benjamin to recuse himself from the case shortly after the defendant's CEO spent millions of dollars to help Benjamin get elected to the West Virginia Supreme Court of Appeals. The court applied a "probability of actual bias" test and found that on the "extreme facts" presented by this case, "the probability of actual bias rises to an unconstitutional level."

In his dissenting opinion, the Chief Justice wrote that "[t]he Court’s new 'rule' provides no guidance to judges and litigants about when recusal will be constitutionally required. This will inevitably lead to an increase in allegations that judges are biased, however groundless those charges may be. The end result will do far more to erode public confidence in judicial impartiality than an isolated failure to recuse in a particular case." Justices Scalia, Thomas and Alito joined in the dissent. Justice Scalia wrote his own separate dissent.

Regardless of how you might feel about the facts of this case, everyone who practices in a state with elected judges is wondering this evening whether the floodgates have just been opened for recusal motions based on campaign contributions. The "40 questions" posed by Justice Roberts in his dissenting opinion raise many good questions about the "probability of bias" standard and how far it might stretch.
Caperton v. A.T. Massey Coal Co. (S.Ct. 6.8.2009)

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