Ample evidence COO knew of recruiter’s complaints or that HR VP was joint decisionmaker

By Joy Waltemath

By Joy P. Waltemath, J.D.

The Fifth Circuit found ample, albeit conflicting, evidence to support a jury finding that a COO who made the decision to fire a recruiter after he reported the CEO’s sexual harassment either knew of the recruiter’s complaints to HR or was a decisionmaker alongside the VP of HR, who absolutely knew of the complaints, discussed the firing with the COO beforehand, participated in the termination meeting, and entered the recruiter’s termination into the company’s computer system, which would have been unusual had she not been involved (EEOC v. EmCare, Inc., May 19. 2017, Prado, E.).

A Texas federal jury had sided with the EEOC and awarded nearly half a million dollars to three former EmCare employees in their Title VII sexual harassment and retaliation lawsuit. The $499,000 award was divided among an executive assistant, a credentialer, and the recruiter here. He was initially supervised by the CEO, whose alleged persistent sexual remarks and gestures precipitated the complaints. EmCare appealed the judgment with respect the recruiter only, claiming that the EEOC failed to present sufficient evidence of a causal link between his protected complaints and his termination because there was no evidence that the COO who decided to fire him knew that he had complained about the CEO’s sexual harassment.

CEO’s conduct. At trial, numerous witnesses testified that the CEO constantly commented on women’s bodies; he often referred to the size of women’s breasts, made groping gestures, and sought intimate hugs; and he made inappropriate comments about his employees’ wives. But the final straw, apparently, was in June 2009, when the employer hosted a “Bring Your Child to Work Day” (BYCTW Day). One of the other claimants, the credentialer, brought her 15-year-old daughter, and she testified at trial that when she introduced her daughter to the CEO, he said “[T]here is no way she is 15 with breasts like that” and then laughed when her mother became visibly upset.

Employee complaints. The recruiter and another employee immediately accompanied the credentialer to HR to complain, which the recruiter had already done at least four times. The HR manager asked them to submit a formal complaint, and the recruiter did so that same day. Testimony at trial was that the VP of HR and the HR manager were occasionally present for the CEO’s comments but never reprimanded the CEO. The COO was said to have heard at least one offensive comment and stated “one day” the CEO would “get [them] in trouble.” Although all the claimants testified that they complained to HR about the CEO’s behavior and the work environment it created, they never heard of any investigative or remedial action taken by their employer. The recruiter also testified that every time he complained to HR about the CEO, “the CEO would tell him shortly thereafter that he ‘needed to shape up and do things better’” but would not point out any deficiencies when the recruiter asked for specifics.

Audit, termination. The next month, the VP of HR suggested that the recruiter’s and credentialer’s units be audited. In a summary to the COO, the report listed several problems with the unit’s performance caused by the failures of a regional vice president, an issue that the recruiter had already reported to the COO. Overall, however, the court characterized the report as “essentially positive regarding the recruiter’s performance, particularly as it compared to that of another recruiter who did not get fired. Six weeks after BYCTW Day and four days after the COO received the audit report, EmCare fired the three employees who complained on BYCTW Day. The VP of HR and the COO told the recruiter he was being fired because “it was [not] working anymore.” The COO testified that it was his decision to terminate the recruiter, although he said he discussed the decision with the VP of HR and the CEO beforehand.

Knowledge of complaints. On appeal, EmCare challenged only whether the EEOC presented legally sufficient evidence of a causal link between the recruiter’s complaints and his termination. It argued there was no evidence the COO, who made the firing decision, was aware of the recruiter’s complaints, which implicitly argued that there was no evidence that anyone other than the COO decided to fire the recruiter, reasoned the court. EmCare also contended that any evidence suggesting the COO knew of the complaints was speculation.

No speculation. “This case does not involve mere speculation,” said the Fifth Circuit, pointing to an abundance of conflicting testimony on critical issues. It cited conflicting testimony as to whether the VP of HR and the COO ever personally observed the CEO make sexually offensive comments, whether the recruiter ever complained to HR about the CEO’s behavior, and whether the audit of the recruiter’s unit produced any legitimate grounds to fire him. Because of conflicting, contradictory testimony, the jury was entitled to make credibility determinations and find that the COO and the VP of HR had both witnessed the CEO’s inappropriate behavior and taken no action, that the recruiter and other employees complained to HR numerous times, and that the justification for firing the recruiter was pretextual.

In addition, the recruiter testified that the CEO would criticize the recruiter whenever he complained, allowing the jury to infer that the CEO knew about the complaints. Both the CEO and the COO were executives and supervisors in the same division; thus, the COO could have been given the same information, or the VP of HR could have told the COO about the complaints when they admittedly discussed the recruiter’s performance and termination.

Two decisionmakers? And there was sufficient evidence for the jury to find that the VP of HR and the COO both made the decision to fire the recruiter, since a decisionmaker is an individual “who actually made the decision or caused the decision to be made.” Here, the VP of HR decided to audit the recruiter in 2009, shortly after his complaint on BYCTW Day, and that audit was used to justify his firing. The COO discussed firing the recruiter with the VP of HR before it happened; the VP of HR was present when it happened; and she entered his termination into the company computer system, even though that was not her usual practice. “Any inference by the jury that the VP of HR was a decisionmaker or caused the decision to be made would not have been speculative,” concluded the appeals court. Affirming the district court, the appeals court also cited ample trial evidence of causation, including the timing and the fact that the three employees who complained together were all fired the same day.

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