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Meeting of June 17, 2015 - Retaliation in the Workplace: Causes, Remedies, and Strategies for Prevention

Written Testimony of Anica C. Jones

Good Morning. My name is Anica Jones. I'm a trial attorney in the Memphis District Office of the Commission. I am assigned to the Nashville Area Office. I served as lead counsel in the case EEOC v. New Breed Logistics, a sexual harassment and retaliation lawsuit filed in U.S. District Court in Memphis, Tennessee in September 2010. My co-counsel, Trial Attorneys Matthew McCoy and Kelley Thomas, and I, tried the New Breed case before a Memphis jury in May 2013. As you know, the jury found in favor of EEOC on all claims and awarded the four claimants over $1.5M. New Breed appealed the verdict, but on April 22, 2015, the Sixth Circuit Court of Appeals affirmed the jury verdict. In doing so, the Sixth Circuit addressed an issue of first impression and established new law in the circuit: Telling a harassing supervisor to cease his harassing conduct constitutes protected activity. The appeal was handled by Appellate Attorneys Susan Oxford and Lorraine Davis. New Breed recently filed a petition for rehearing.

This case began when Charging Party Tiffany Pete filed a charge of discrimination against New Breed in June 2008, approximately one month after she was discharged in retaliation for complaining about sexual harassment by a New Breed's warehouse supervisor. Ms. Pete alleged she asked the harassing supervisor to stop the behavior, but he never would. Ms. Pete called New Breed's anonymous hotline and reported the harassment. Shortly thereafter, the supervisor caused New Breed to transfer Ms. Pete and another employee, Capricious Pearson, from that supervisor's department. After their transfer, New Breed fired them within a week.

Ms. Jacqueline Hines, who is present here today, also worked under the same harassing supervisor. Ms. Hines was subjected to retaliation after she repeatedly told the harassing supervisor to stop his harassment. The supervisor ultimately fired Ms. Hines in retaliation because she rejected his advances. The supervisor also retaliated against a male employee named Christopher Partee. Mr. Partee supported the women's complaints against the supervisor and told the harassing supervisor to stop his behavior because the harassment made the women uncomfortable. The supervisor caused Mr. Partee's discharge after he orchestrated a plan to get Mr. Partee fired too. The Commission pursued sexual harassment and retaliation claims for each of three female claimants and a retaliation claim for Mr. Partee. As to the retaliation claims, the Commission alleged the harassing supervisor caused four employee's discharge under the cat's paw theory.

Ms. Hines was identified during the investigation as a victim of sexual harassment and retaliation. But what the Commission learned during discovery led us to pursue a second claim of retaliation on Ms. Hines' behalf. When I first met Ms. Hines, she explained that after she was fired from New Breed's Memphis warehouse, New Breed's HR Manager contacted her as part of New Breed's investigation and questioned her about the harassment. Ms. Hines participated in this investigation by answering questions about the harassment. A couple weeks later, she learned that New Breed was hiring permanent employees at a warehouse in Olive Branch, Mississippi, located just minutes away from Memphis. Ms. Hines applied and was hired. The job seemed to be going well, but after a couple weeks she was abruptly fired and escorted off the premises for no apparent reason. This second termination, occurring within weeks of the first termination, certainly raised red flags. Ms. Hines suffered retaliation for opposing sexual harassment, and now she suffered retaliation for participating in company's internal investigation.

During discovery, I took the deposition of New Breed's HR Manager. The HR Manager admitted she "recognized Ms. Hines name," and had her fired from the Mississippi warehouse. Thereafter, the Commission filed a motion for leave to amend its initial complaint. The court granted leave and the Commission added a second claim of retaliation on Ms. Hines' behalf.

The jury heard all of the evidence and appropriately awarded damages to Ms. Pete, Ms. Pearson, Ms. Hines, and Mr. Partee.

I would like to mention some take away points before I conclude. Retaliation is avoidable. But to avoid retaliation, company personnel must provide training on retaliation; investigate immediately claims of discrimination; and take corrective action. Once complaints are known to the harasser, he or she may have the power to retaliate. That's exactly what occurred in this case. At trial, the HR Manger claimed she had launched an investigation as soon as possible. Her investigation, however, did not seek detailed information. Rather, she relied on the harasser. Her investigation consisted of asking the harasser five questions. Further, each of the four claimants was fired within weeks of their protected activity, and each was fired during New Breed's investigation. New Breed did nothing to protect these employees.

Also, at the time of the harassment New Breed was just opening warehouses in the Memphis area and hiring temporary employees to meet its needs. In fact, 80 percent of its workforce was temporary employees. But according to New Breed's policy, only permanent employees were given an employee handbook. The temporary employees had little to no training on sexual harassment and they had no handbook. This also proved to be detrimental to New Breed's defense.

In conclusion, I want to thank Chair Yang and the Commissioners for allowing me to come here today to discuss the retaliation that occurred in New Breed, and Strategies and Remedies for Prevention. It was a pleasure working with each of the four claimants during the litigation. If they had additional information or documentation they made sure the EEOC attorneys had it. I'm pleased that Ms. Jacquelyn Hines could join us today and tell us her story.