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Paul Zimmerman
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EmCare Challenges Sex Harassment Jury Verdict

EmCare Inc., a Dallas-based company that specializes in providing physician medical services, asked a federal court in Texas last week to reverse a $500,000 jury verdict awarded to three former employees who were terminated after reporting instances of sexual harassment in the workplace. In August 2011, Gloria Stokes, Bonnie Shaw and Luke Trahan filed a claim with the U.S. Equal Employment Opportunity Commission (“EEOC”) accusing EmCare of violating Title VII of the Civil Rights Act of 1964. In its post-trial motion, EmCare alleged that the jury lacked an evidentiary basis for its findings.

Gloria Stokes worked under CEO Jim McKinney from December 2008 to May 2009. During that time, she alleged that she was on the receiving end of a number of sexually explicit comments made by McKinney and other management-level employees relating to female body parts and other vulgar references. Ultimately, Stokes claimed in her complaint that she was fired for reporting McKinney’s conduct to the human resources department.

In its motion, EmCare argued that the evidence presented by Stokes and the EEOC failed to meet the “severe and pervasive” burden necessary to allege a claim for a hostile work environment. In order for an employee to sufficiently allege a claim based on hostile work environment, he or she “must demonstrate that the conduct complained of was severe enough or sufficiently pervasive to alter the conditions of employment and create a work environment that qualifies as hostile or abusive to employees because of their sex.” Lyle v. Warner Bros. Television Prods., 38 Cal. 4th 264, 279 (2006)(citing Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)).

Stokes, EmCare states, only presented “three isolated and innocuous statements said to her, and a handful of statements or acts she overheard or that were directed toward individuals other than herself.” Moreover, “the evidence at trial also showed that Stokes’ work performance was not affected by the alleged harassment, which therefore did not, as a matter of law, affect a term, condition or privilege of her employment.” If EmCare is unable to secure a new trial, it wants the judge to reduce the jury’s punitive damages award because it “was grossly excessive” when compared to cases involving “far more egregious conduct.”

EmCare also disputed the jury’s determination that Bonnie Shaw and Luke Trahan were terminated in retaliation for reporting instances of sexual harassment to the company’s human resources department. Both employees were fired within an hour of one another after they jointly reported that McKinney had made an inappropriate remark to Shaw’s fifteen year old daughter while she was attending the company’s “Bring Your Child to Work Day” event.

In its motion, the company argued that there was no causal link between Shaw and Trahan’s reports of sexual harassment and their termination. More specifically, EmCare believes the evidence shows that the person who was responsible for the decision to terminate the two employees “had no knowledge that Shaw or Trahan had made a complaint of any kind regarding sexual harassment or McKinney’s conduct.” The company also told the court that the “same employment decisions would have been made in the absence of any discriminatory motive.”

It remains to be seen how this case will turn out on appeal, but it is nevertheless  instructive for employers.  Any alleged harassment, even that which may appear sporadic or trivial, can become the source of a fierce legal dispute over whether it rises to the level of unlawful sexual harassment.  Consequently, employers must swiftly and thoroughly investigate any claim of harassment, document the investigation, report back to the claimant, and take appropriate action. In addition, retaliation claims are commonly filed in conjunction with claims of harassment. When taking action against an employee who has a pending complaint regarding an alleged violation of company policy, employers should ensure any adverse action taken against the employee is supported by reasons unrelated to the alleged protected activity.  Finally, managers need to be trained on how to identify, report, and respond to claims of harassment, retaliation, and other workplace complaints. Proactive steps such as these can give an employer the evidence it needs to defend itself from claims of harassment and retaliation.           

This article is not offered as, and should not be relied on as, legal advice. You should consult an attorney for advice in specific situations.