8.4.21

Common sense suggests that once the discipline train has left the station an employee should not be able to derail it by filing a charge of discrimination or engaging in other protected activity. This concept is typically applied by judges in situations where an employee has been progressively disciplined, is aware that termination is imminent, and then engages in protected conduct -- often in an intentional effort to shield the employee from adverse action.

But, what happens when the discipline train has been delayed? The recent decision of the U.S. Court of Appeals for the Eighth Circuit in Hairston v Wormuth, with facts and characters that read like a bad pulp fiction novel, sheds some light on that question.

Nycoca Hairston was hired at the U.S. Army’s Pine Bluff Arsenal in January 2013 and was terminated 11 months later. Throughout her brief period of employment, many of the employees at the Arsenal, including Ms. Hairston, had personal and professional conflicts with one another. In July 2013, Ms. Hairston’s team leader, Deborah Moncrief, apparently had reached her breaking point dealing with these conflicts and held a departmental meeting during which she told the employees “she was tired [of their being] backstabbing bitches” and “acting like babies.”

(While that may well have been true, we do not recommend such descriptions when addressing employees.)

The immediate supervisor of Ms. Moncrief and Ms. Hairston was Dwayne (not The Rock) Johnson. During her first six months on the job, Ms. Hairston accused Mr. Johnson of demanding that she give him a hug, saying that she had a “nice booty,” and dropping a salt shaker down the front of her blouse at an employee party at Ms. Moncrief’s house that was held during work hours, with alcoholic beverages served.

(Once again, not a best practice).

When Mr. Johnson was informed of these accusations, he responded with a litany of complaints about Ms. Hairston. According to Mr. Johnson, Ms. Hairston told him about her sex life, said that she was “lonely” and “horny,” rubbed her breasts against his back, complained to him that other employees were jealous of her because of her looks, and failed to properly perform her job duties.  Mr. Johnson also alleged that other employees had complained about Ms. Hairston, saying that she lashed out at them and caused drama. Several of these incidents were corroborated in sworn statements from these employees, including one who accused Ms. Hairston of threatening to hit her car during an argument in the parking lot.

In October 2013, the Army brought in a Senior Criminal Investigator, David Barrington, to investigate the allegations that Ms. Hairston and Mr. Johnson had brought against each other.  (This Mr. Barrington clearly was no relation to Stone Barrington, the criminal investigator in more than 50 Stuart Woods’ crime novels.) In late November 2013, David Barrington submitted a report in which he identified Ms. Hairston as the “subject” of the investigation and Mr. Johnson as the “victim.”

(Once again, not a best practice and certainly not something Stone Barrington would do).

The report concluded that Ms. Hairston’s accusations were unfounded, but that some of Mr. Johnson’s accusations were substantiated, including several involving other employees. David Barrington concluded that the sworn statements he received were sufficient to support taking action against Ms. Hairston.

In early December 2013, Ms. Hairston sought counseling at the Arsenal’s EEO office. A week later, she submitted a complaint against Mr. Johnson regarding a comment she overheard him make to other employees during a conversation about the Victoria’s Secret fashion show. A few days later, Ms. Hairston’s employment was terminated based on the conduct outlined in David Barrington’s November 2013 investigative report.

After her termination, Ms. Hairston filed suit alleging sexual harassment and retaliatory discharge. A federal judge granted summary judgment on both claims. The Eighth Circuit upheld the dismissal of the sexual harassment claims, finding that Mr. Johnson’s alleged comment about Ms. Hairston’s “nice booty,” his allegedly dropping a salt shaker down her blouse, and his alleged comment about the Victoria’s Secret show, were insufficient to show the existence of an objectively hostile or abusive work environment.

Although the timing of Ms. Hairston’s termination certainly was suspicious, coming just days after she sought counseling from the EEO office and submitted her complaint about the Victoria’s Secret comment, the appeals court said that she still needed to present facts from which a jury could conclude that the reason for her termination was a pretext for retaliation. The court found two such facts. First, the court noted that most, if not all, of the purported misconduct described in Ms. Hairston’s termination letter had been known to the Army for many months. In fact, eight months had elapsed between Mr. Johnson’s first complaint about Ms. Hairston’s misconduct and her termination. Second, the court noted that there was little if any evidence that the Army investigated Ms. Hairston’s complaints about Mr. Johnson in the same manner that it investigated Mr. Johnson’s complaints about Ms. Hairston. According to the court, these two aspects of the record were enough to let the retaliation claim go to trial.

Reading between the lines of this sordid little tale, the Army may well have been dealing with a toxic employee who continuously stirred the pot with her supervisors and co-workers. However, the Army’s failure to address her misconduct when it occurred opened the door for Ms. Hairston to argue that it did not warrant discipline or termination. If a jury buys that argument, it could easily go on to find that she was a victim of retaliation. Had Ms. Hairston’s discipline train left the station on time, the destination for her claims might have been very different.

For a printer-friendly copy, click here.

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