Jottings By An Employer's Lawyer

Friday, November 19, 2004

Turmoil In the HR Department - Management Wins, Twice

For the 2nd time this week a circuit court of appeals affirms summary judgment on claims brought by former HR employees who seemed to be causing rather than resolving employment issues. In Friday's decision Luckie v. Ameritech Corp. (7th Cir. 11/19/04) [pdf], Ms. Luckie, an organizational development specialist was described as having a "toxic effect" on the department. Ultimately, put on a performance improvement plan, she didn't improve and was terminated. She sued alleging racial harassment and retaliation. On racial harassment, the Court noted it was atypical, since it did not involve "racial slurs, epithets, or other overtly racial behavior" but rather referred to three specific incidents, a comment that a minority employee of the department was a "dunce", an email sent by one of her subordinates complaining about her management and a comment by her supervisor that she wanted to change "the complexion" of the department. The court found only the last could have any conceivable relationship to race, and given that it was made in the context of a re-organization of the department, was not racial. In any event, the actions were not severe and pervasive.

Her retaliation claim fared no better as she could not show any direct evidence that her superior actually knew of her protected activity. Nor could she meet the prima facie case under the indirect method since she could not show she was satisfactorily performing her job.

As a last point, the court dealt with a fundamental hearsay issue. The plaintiff objected to evidence of comments (including the "toxic effect" on the department) made by others that were considered by the manager in making the decision. The objection -- hearsay; the answer, overruled. It is not hearsay because it is not offered for the truth of the matter asserted. Nothing more but restating the basic definition of hearsay, but music to the ears of any management side lawyer who has been thwarted in trying to get what is often 'critical' evidence admitted because the judge 'forgot' that all out of court statements are not hearsay.

Earlier in the week, the 5th Circuit upheld a summary judgment against a former HR employee, Marilyn Haley who alleged that she had been constructively discharged following her return from a stress induced FMLA leave. The stress arose after an employee survey raised concerns and criticisms about the HR department, including Haley. The Court found her evidence that she was micromanaged and that her position had changed insufficient to raise a fact issue as to whether she was constructively discharged. Haley v. Alliance Compressor LLC (5th Cir. 11/18/04) [pdf]. Absent discharge, she had no claim.

Although employers are often justifiably concerned when HR employees sue, perhaps attributable to the "they know where the bodies are buried" syndrome, as this week's result show, all is not always lost when they sue.

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