Drew Capuder’s Employment Law Blog

The United States Department of Labor recently issued an Administrator’s Interpretation 2010-3 which applies leave rights under the Family and Medical Leave Act to care of children by same-sex couples. The US Department of Labor issued a press release to help explain the Administrator’s Interpretation. In other words, employees in same-sex relationships who qualify for leave under the FMLA will be entitled to protected leave for the qualifying care of their children.

As the DOL’s press release succinctly says, the “FMLA allows workers to take up to 12 weeks of unpaid leave during any 12-month period to care for loved ones or themselves”. (29 U.S.C. 2612; 29 C.F.R. 825.200).

What is a “son or daughter”?

The key issue was when the child fell into the definition of “son or daughter” for the employee seeking leave. When does the law recognize the child as the “son or daughter” of the employee?

Administrator’s Interpretation 2010-3 sets out the statutory language, and same-sex couples now have the necessary relationship to the child through the status of being “in loco parentis”, which more or less means someone who “stands in the place” of the parent. Here is the discussion in the Administrator’s Interpretation:

The FMLA entitles an eligible employee to take up to 12 workweeks of job-protected leave, in relevant part, “[b]ecause of the birth of a son or daughter of the employee and in order to care for such son or daughter,” “[b]ecause of the placement of a son or daughter with the employee for adoption or foster care,” and to care for a son or daughter with a serious health condition. See 29 U.S.C. § 2612(a)(1)(A) – (C); 29 C.F.R. § 825.200. The FMLA defines a “son or daughter” as a “biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis, who is— (A) under 18 years of age; or (B) 18 years of age or older and incapable of self-care because of a mental or physical disability.” 29 U.S.C. § 2611(12). See also 29 C.F.R. §§ 825.122(c), 825.800.

(emphasis added).

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I have added a new print feature to my Blog, based on a service provided by FormatDynamics. If you click on the title of any article on the main page of my blog, that opens that particular complete article. At the bottom of the article will be a black button labeled "Print Blog". Clicking that button will print the blog article in a format that prints just the article, without all the links and other materials on each page of the blog. We have tested this print feature successfully on the FireFox and Internet Explorer browsers. This black button does not appear on the home page of my blog–you have to open up each article you want to print (by clicking on the title of the article). Feel free to email me with any comments about this feature.

I will be speaking (and presenting on article) on recent developments in retaliation under federal and West Virginia employment law on either October 29 or 30, 2010 at the annual conference of the West Virginia Employment Lawyers Association. The conference will be at Oglebay Resort and Conference Center in Wheeling, West Virginia. The final schedule is not out yet, so I don’t know whether my speech with be on October 29 or 20.

Retaliation law in recent years has been one of those developing areas, and much more often than not the movement in the case law has been in the direction of expanding protections for employees against retaliation. The US Supreme Court especially has focused on retaliation law, and has “plugged gaps” in the law for federal employees to include protection for retaliation claims, has lowered the threshold for what is actionable retaliation, and has broadened the definition of “opposition” which entitles employees to protection.

One of the dangers for employers from retaliation claims is that, after an employee complains about alleged discrimination, the employer may be guilty of retaliation even if a jury decides there was no discrimination to support the employee’s original complaint. An employee may succeed in a retaliation claim as long as his complaint was made in good faith, even if the employee was wrong about the complaint of discrimination.

In the prior 2 years at the annual conference for WVELA, I spoke and wrote articles on awards of attorneys’ fees under employment discrimination laws, and on age discrimination.

I’ve been experimenting with some cosmetic and substantive improvements to my blog. For those of you who have been reading my blog for a while, I hope you see an assortment of relatively minor improvements. Feel free to email me or call me about the changes. I’d appreciate any suggestions.

I’ve recently added a toolbar which will appear at the bottom of your browser when you are viewing my blog. The toolbar is from a company named Wibiya.

The image above is of the left and center part of the toolbar. Some of the buttons are self-explanatory, and I have only a few explanatory notes:

• The blue circle button, with pop-up text “Photo Gallery”, shows a set of photographs that I took of the Marion County Courthouse, in Fairmont, West Virginia. When I was a kid, I wanted to be a professional photographer, and then I wanted to be an architect. So it’s still fun to take pictures of beautiful buildings. By the way, the 5 courthouse photos at the top of each page of my blog are also photos I took of the Marion County Courthouse. We then tinted the photos blue (except for the American flag) to make them look artsy.
• The YouTube button shows alternative versions of video when I was interviewed by WBOY Television in Clarksburg, West Virginia, during the lawsuit West Virginia University filed against its former coach, Rich Rodriguez. In the not-too-distant future, I hope to put additional videos on Capuder Fantasia PLLC’s web site about points of interest in employment law, and as we get those videos finished they will be available on this YouTube button.

Written by Drew M. Capuder (contact information); Voice 304-333-5261

I will be speaking (and presenting articles)  at a seminar sponsored by Sterling Education Services on October 20, 2010 in Morgantown, West Virginia, entitled “Fundamentals of Employment Law”.

I will be speaking (and presenting articles) on “Sexual, Racial, and Other Harassment in the Workplace” and “ADA and FMLA Update”.

Here is the full agenda, and here is the faculty information. The seminar will provide around 6-8 hours of continuing education credit for lawyers (I don’t know the exact number, but the seminar is a full day).

You can register for the the seminar online. For further information, you can contact Sterling, and their number is 715-855-0498.

Drew M. Capuder (contact information); Voice: 304-333-5261

The West Virginia Supreme Court recently issued an opinion dealing with one of those stereotypically awkward situations, where an employee allegedly stumbles into a room where the boss is having sex with a co-worker. The decision was  Roth v. DeFeliceCare, Inc., – W. Va. –, – S.E.2d –, 2010 WL 2346248 (June 8, 2010) (per curiam). It was a 3-2 decision, in which the 3-vote majority consisted of Justices Robin Davis, Margaret Workman, and  Thomas McHugh. Justices Menis Ketchum and Brent Benjamin dissented, and Justice Ketchum wrote a dissenting opinion.

The Facts–Sex at Work

These are the facts according to the complaint in the lawsuit: Tricia Roth was a respiratory therapist working at DeFeliceCare, Inc. in Ohio County, West Virginia, and she was about to go on vacation. She was directed by Leslie DeFelice (the male boss/owner) to come to work sometime during the weekend preceding her vacation in June 2006. She was not told a specific time to come to work during that weekend. When she came to work as ordered, she “observed Defendant [Leslie] DeFelice and/or Michelle Kelly partially clothed and in a compromising position”. Mr. DeFelice instructed Ms. Roth to go into a conference room and wait–meanwhile Mr. DeFelice and the other employee got all their clothes back on. Mr. DeFelice then talked to Ms. Roth and told her to forget about what she had just seen, and threatened Ms. Ross with the loss of her respiratory therapy license and the loss of her employment.

Ms. Roth then went on vacation. When she got back from vacation and returned to work, she had a meeting with Mr. DeFelice that didn’t go well. Ms. Roth told Mr. DeFelice that she hadn’t told anyone about his sexual encounter at work. Mr. DeFelice proceeded to fire Ms. Roth because “he did not like how she was dressed” and “he did not like the style[/]color of her hair”.

Ms. Roth Files Suit–Case Dismissed

Ms. Roth then filed suit on legal theories centering around sex discrimination and sexual harassment, and–bada bing!–the case promptly got dismissed.

Ms. Roth’s complaint (the document which starts the lawsuit and describes the plaintiff’s allegations) focused on the sexual incident I have described above, but also made allegations about other sexual harassment–I will discuss those details below.

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It might be obvious, but it seems a bit difficult to win on a claim for sexual harassment where all of the harassment occurs behind your back (and by "behind your back", I mean situations where the harassing behavior occurs when the complaining employee is not physically present to experience or hear what is happening).

The Fourth Circuit Court of Appeals addressed this issue in Pueschel v. Peters, 577 F.3d 558 (4th Cir. 2009), in a unanimous decision written by Judge Roger Gregory in which Judges M. Blane Michael and Robert Bruce King joined.

The Fourth Circuit didn’t have much difficulty reaching the conclusion that, for any claim alleging a hostile work environment (including sexual harassment), you can’t succeed if all of the misconduct about which you complain occurred at work when you were not at work.

Twenty Eight Years of Litigation!!!

This case grows out of an incredibly long history of litigation (including several different lawsuits and appeals (some of which were successful)) filed by Ms. Pueschel against her employer, the Federal Aviation Administration ("FAA"). The litigation started in 1981 and ended with this Fourth Circuit decision in 2009 (I am not kidding, and I am not sure this decision marks the end of all of her litigation).

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On March 17, 2010, a jury in Jackson County in West Virginia awarded Jerold John Rice Jr. roughly $2.1 million in an age discrimination case against The Burke-Parsons-Bowlby Corporation, Stella-Jones US Holdings Corporation, and Stella-Jones, Inc., tried in Judge Thomas C. Evans III’s court.

Mr. Rice was represented by Mark Atkinson and Paul Frampton at Atkinson & Polak, PLLC, and the defendants were represented by Roger Wolfe at Jackson & Kelly PLLC in Charleston, and Kevin Hyde at Foley & Lardner, LLP in Jacksonville, Florida.

Here is a quick run-down of what was awarded in the case:

• Back pay: $142,659 awarded by jury.
• Pre-judgment interest: $11,791.84 from date of termination through trial.
• Front pay: $1,991,332.00 awarded by jury (from roughly age 48 through retirement age at 67).
• Emotional distress: $0.
• Punitive damages: Jury did not answer question affirmatively which would have allowed award of punitive damages.
• Total judgment based on jury’s verdict: $2,145,782.84, plus post-judgment interest on that amount at 7% per annum.
• Attorneys’ fees: $117,235 awarded by judge (based on $450 an hour for Mark Atkinson and $300 per hour for Paul Frampton).
• Litigation expenses: $20,324.16 awarded by judge.
• Total award: $2,283,342.00 (based on jury verdict, pre-judgment interest, attorneys’ fees and expenses) plus post-judgment interest at 7% per annum.

The Rice case illustrates the risk employers face when they terminate an older, good, long-standing employee, and replace him or her with a much younger person with little or no experience for the employer.

What Happened?

Mr. Rice at the time of his termination (in 2009) was age 47 and had worked for Burke-Parsons-Bowlby Corporation for 24 years. When Mr. Rice was terminated he was the corporate controller.

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Sexual harassment claims frequently require judges and juries to distinguish between "merely crude" behavior, which doesn’t violate the employee’s rights, and "sexual harassment", which does. The Fourth Circuit Court of Appeals addressed that issue in EEOC v. Fairbrook Medical Clinic, PA, — F.3d — (4th Cir. 2010) (opinion at Fourth Circuit’s site), and didn’t have a lot of trouble concluding that the conduct in issue could reasonably be viewed by a jury as sexual harassment, ruling in favor of the employee. One of the key issues was whether the conduct was "severe or pervasive" enough to constitute a "hostile work environment".  The unanimous opinion was written Judge J. Harvie Wilkinson III, joined by Judges Andre M. Davis and C. Arlen Beam (from the Eighth Circuit).

Doctor on Doctor Harassment at Fairbrook Medical Clinic

Dr. John Kessel was the owner of Fairbrook Medical Clinic in South Carolina, and was accused by a former female doctor at the clinic, Dr. Deborah Waechter, of sexually harassing her. Dr. Kessel was Dr. Waechter’s supervisor. Dr. Waechter worked for him for 3 years and quit, allegedly over a broad range of sexually explicit statements made during most of those 3 years (I’ll discuss the specifics below).

Dr. Waechter’s Lawsuit

Dr. Waechter then filed a charge of discrimination with the EEOC, alleging that Dr. Kessel’s behavior created a "hostile work environment", and the EEOC then filed suit on behalf of Dr. Waechter against Dr. Kessel’s clinic under Title VII of the Civil Rights Act of 1964.

After discovery was conducted. Fairbrook Medical Clinic filed a motion for summary judgment, and the federal trial judge granted it. The trial judge reasoned that the offensive conduct was "not particularly frequent," mostly involved "the type of crude jokes that do not run afoul of Title VII," did not cause Dr. Waechter to miss work or feel "severe psychological stress," and did not include inappropriate touching or physical threats.

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I previously wrote about the Supreme Court’s retaliation decision in Burlington Northern & Sante Fe Railway Co. v. White, 548 U.S. 53 (2006) ("Burlington Northern v. White"), in which the US Supreme Court substantially broadened the ability of employees to file retaliation claims under Title VII of the Civil Rights Act of 1964. It was a unanimous (9-0) decision.

I wanted to set out some additional thoughts about Burlington Northern, because it addresses an issue that has troubled the courts in interpreting the federal anti-discrimination laws: When is an employer’s conduct serious enough in disadvantaging an employee so that the employee has a claim under the employment discrimination laws? The answer is easy when the employer’s decision affects the employee’s pocket book, like with termination, failure to hire, demotions, and the like. The answer has been much harder when the employer’s conduct didn’t directly affect the employee’s pocket book.

NBA referees struggle with a similar issue: where is there enough physical contact on the court to justify calling a foul on a player. So let’s explore some parallels between these employment discrimination issues and the NBA’s "no blood no foul" rule.

The NBA’s "No Blood No Foul" Rule

If you watch National Basketball Association games, you might be struck by how much physical contact there is on the court and how rarely the referees call personal fouls over that physical contact. Fans of the NBA have only a partially kidding way to refer to the "standard" by which the referees decide how much contact will result in a personal foul being called. It’s the "no blood no foul" rule. In other words, the referees will allow a lot of physical contact, and will only call a foul when someone gets bloodied as a result of the contact.

Let’s assume, with our tongues in our cheeks, that there is such a rule (no blood no foul) that NBA referees apply, regardless of what is written in the Official Rules. The idea behind the "no blood no foul" rule is this: there is so much fast-paced hurley-burly contact on the basketball court, much of which makes it more exciting for the fans, that calling a foul for any physical contact (or a lower defined level of physical contact) would slow down the game for fans and make the game less enjoyable, unreasonably impede the skill of the players, and makes it impossibly hard for officials to identify "contact". So the appearance of blood is a more "objective" indication that the contact really mattered and really constituted an unfair interference with the other player.

The Supreme Court Struggles With "When is There a Foul"?

Courts for years have struggled with the employment discrimination equivalent of the "no blood no foul" rule. For the courts, assuming unlawful discrimination occurred: when is the consequence of the discrimination serious enough and objectively discernible so that courts will recognize a claim and intervene by activating the court’s process and potentially awarding damages.

Except for situations involving hostile work environment, the courts have translated the NBA’s blood requirement into a tangible economic consequence. Thus, much in the spirit of the NBA, the courts have said economic harm must be demonstrable as a result of discrimination, or else the courts won’t entertain the claim no economic consequence, no legal violation, case dismissed.

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4/1/09: The US Supreme Court ruled that “pre-dispute arbitration agreements” in collective bargaining agreements (union contracts) are enforceable, in Penn Plaza PLLC v. Pyett, 129 S. Ct. 1456 (2009) (5-4 decision).

This was an age discrimination case under the Age Discrimination in Employment Act of 1967 (ADEA). The plaintiff was a member of a union, and the collective bargaining agreement (union contract) required submitting age discrimination claims to binding arbitration.

The US Supreme Court had previously ruled, but not in a labor union setting, that arbitration agreements for ADEA claims were enforceable under the Federal Arbitration Act, 9 U.S.C. sections 3-4 (Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 26-33 (1991)). So the real issue in Penn Plaza was whether there would be a different result because of the union contract setting and the National Labor Relations Act.

The Supreme Court in Penn Plaza, in a divided decision (5-4), held that the arbitration agreement contained in the union contract was enforceable.

The enforceability of arbitration agreements for employment disputes has been a political hot potato, and The Arbitration Fairness Act of 2009 (H.R. 1020) was introduced in the US House on February 12, 2009. The bill has 36 co-sponsors, and has been referred to the House Committee on the Judiciary. If it passes, it would essentially overrule Penn Plaza and other cases which have held that employment dispute arbitration agreements are enforceable.

Written by Drew M. Capuder (contact information)

10-13-09: The West Virginia Supreme Court addressed the enforceability of employment arbitration agreements in State ex rel. Clites v. Clawges, 224 W. Va. 299, 685 S.E.2d 693 (2009) (opinion at Findlaw’s web site). This Clites decision is discussed in my chart of West Virginia Supreme Court decisions.

Clites Goes To Work For TeleTech And Signs An Arbitration Agreement

The plaintiff, Jill Clites, went to work for TeleTech in October 2004 as a Customer Service Representative. During new employee orientation, Clites met with a human resources representative for about 90 to 120 minutes, during which time Clites reviewed and signed a large number of documents related to the orientation. In the record before the West Virginia Supreme Court, there were disputes over whether individual documents were discussed with Clites and whether she was required to sing all the documents during the orientation session, but it appears that during that session Clites signed an arbitration agreement which TeleTech required of most or all new employees.

Clites remained employed at TeleTech until July 12, 2007, when she was terminated. She then filed suit for sexual harassment and retaliation. Clites alleged she complained about the sexual harassment, that TeleTech failed to take appropriate corrective action, and that TeleTech retaliated against her for the complaint by firing her.

Clites Files Suit In West Virginia Circuit Court

Clites filed suit in West Virginia Circuit Court in Morgantown. TeleTech then invoked the arbitration agreement by filing a motion to dismiss the lawsuit and by filing a separate lawsuit in federal court arguing that Clites waived her rights to a jury trial by signing the arbitration agreement. In essence, TeleTech argued that Clites gave up her rights to file suit and to a jury trial by signing the arbitration agreement, and that her only remedy was to file an arbitration proceeding (with the American Arbitration Association) pursuant to the arbitration agreement.

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I have prepared a chart containing a summary of West Virginia Supreme Court decisions significantly affecting employment law. The chart starts on January 1, 2009, with decisions issued after that date. The chart contains hyperlinks to the opinions, both on the West Virginia Supreme Court’s web site, and on Findlaw or on Google Scholar. If you click on the photos of each Justice (in the chart, not on the image above), that will take you to the biography page for that Justice on the Supreme Court’s web site. Finally, the chart contains hyperlinks to this blog.

Click the line below to open the chart, which is an Adobe Acrobat PDF:

WV Supreme Court Employment Decisions

(click here to download the free Acrobat Reader, if you don’t already have it installed on your computer).

This chart is copyright protected by Drew M. Capuder and Capuder Fantasia PLLC. You have permission to distribute this chart only if you distribute the chart unedited by anyone other than Drew Capuder. In other words, you may distribute this chart only in its original form as downloaded from Drew Capuder’s Employment Law Blog.

Prepared by Drew M. Capuder (contact information); Voice 304-333-5261

On October 1, 2009, a jury in Charleston, Kanawha County, West Virginia returned a verdict in an age discrimination case, awarding James Nagy a total of $1,750,450.

That verdict consists of:

• $200,450 for past lost wages and benefits,

• $900,000 for future lost wages and benefits,

• $150,000 for humiliation,

• $150,000 for emotional distress, and

• $350,000 in punitive damages.

Under the West Virginia Human Rights Act (which prohibits age and other forms of discrimination in the workplace), Nagy’s counsel will file a motion additionally requesting attorneys’ fees and expenses.

James Nagy filed suit in Charleston in March 2008 against West Virginia American Water Company, alleging that he was fired in March 2007 because of his age at 53, after 23 years of employment.

James Nagy was represented by Maria W. Hughes and Stephen Weber at Kay Casto & Chaney PLLC. West Virginia American Water Company was represented by Mychal Schulz at Dinsmore & Shohl LLC.

The case is pending in Circuit Court in Kanawha County, West Virginia, before Judge Jennifer Bailey-Walker.

Prepared by Drew M. Capuder (contact information)

President Obama today announced (CNN story and video) his nomination of Sonia Sotomayor, currently a Judge on the Second Circuit, to fill the position on the US Supreme Court to be vacated by the resignation of Justice David Souter.

Within a few hours of President Obama‘s announcement, the CATO Institute and The Heritage Foundation had significant articles devoted to attacking the nomination. Rush Limbaugh this afternoon called Judge Sotomayor a "racist". Sean Hannity called her a "radical" who had made "outrageous" and "amazing" statements. The liberal sites raced out articles attacking the attackers and defending Judge Sotomayor (Talking Points Memo and The Huffington Post).

The first item that has been circulating about Judge Sotomayor is a statement she made about appellate courts making "policy" during a panel discussion at Duke University in 2005 (note: this clip is lengthier, and provides much more context, than the clips played on most news sites):

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4/1/09: The US Supreme Court ruled that “pre-dispute arbitration agreements” in collective bargaining agreements (union contracts) are enforceable, in Penn Plaza PLLC v. Pyett, 129 S. Ct. 1456 (2009) (5-4 decision).

This was an age discrimination case under the Age Discrimination in Employment Act of 1967 (ADEA). The plaintiff was a member of a union, and the collective bargaining agreement (union contract) required submitting age discrimination claims to binding arbitration.

The US Supreme Court had previously ruled, but not in a labor union setting, that arbitration agreements for ADEA claims were enforceable under the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 26-33 (1991)). So the real issue in Penn Plaza was whether there would be a different result because of the union contract setting and the National Labor Relations Act.

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3/10/09: In the West Virginia Legislature, HB 3032, introduced on March 10, 2009, would give employees the right to review their personnel files.  The legislation has not been passed, and in prior legislative sessions, essentially the same bill was introduced without having been passed.

Many people have the incorrect understanding that, in West Virginia, an employer is legally required to allow an employee to review the employee’s personnel file. There is currently no such legal requirement, but the pending HB 3032 will change that if it is passed.

You can review the full text of the bill, and monitor its status on the Legislature’s site.

Prepared by Drew M. Capuder (contact information)

2/1/09: The US Fourth Circuit Court of Appeals hears appeals from federal district courts in West Virginia, Virginia, Maryland, North Carolina, and South Carolina. The Fourth Circuit has 15 judges when all of the judicial positions are occupied. However, 4 of the 15 judge positions are currently vacant. That means that President Obama will be able to appoint those 4 judges.

Appointments to these federal judicial positions require the confirmation by the US Senate. The Democrats control at this time 58 votes in the Senate, through 56 Democrats and 2 Independents (Joe Lieberman, CT; Bernie Sanders VT) who caucus with the Democrats. If Al Franken eventually is declared the winner in Minnesota, which is expected, the democrats will have 59 votes. President Obama only needs 51 votes to confirm one of his judicial nominations. If the Republicans chose to filibuster any of President Obama‘s nominations, the Democrats need 60 votes for cloture to cut off the filibuster and force a vote (cloture requires a three-fifths vote of the voting Senators). If the Democrats will be starting with 59 votes, they will likely frequently be able to “peel off” a Republican or two to break the filibuster.

Federal court of appeals nominations are usually made from lawyers with significant prior judicial experience. So the pool of lawyers to be considered will likely by the current federal district judges, and, less likely, current state court judges.

Given Presidential history since 1980, the substantial majority of federal judges are appointees of Republican Presidents (20 years of Republican presidency versus 8 years of Democrat presidency).

Of the current 11 judges on the Fourth Circuit, 6 were Republican appointees and 5 were Democratic appointees (although Judge Gregory was a "hybrid" having originally been appointed by President Clinton and then re-appointed by President George W. Bush). You can view a chart on Wikipedia that sets out the lineup of current judges and the Presidents who appointed them

Assuming President Obama fills all 4 current vacancies, then we will have a realignment on the Fourth Circuit to: 9 Democrat appointees, and 6 Republican appointees.

Prepared by Drew M. Capuder (contact information)

2/1/09: The National Labor Relations Board (NLRB) consist of 5 members, and the NLRB issues important decisions on a broad range of labor union issues.

There are currently only 2 members, so there are 3 vacancies. Wilma Liebman is considered liberal and pro-union. Peter Carey Schaumber is considered conservative and pro-management.

President Obama will be able to fill the 3 vacancies, with a likely significant shift in labor law in the United States.

Prepared by Drew M. Capuder (contact information)

1/26/09: In Crawford v. Metropolitan Government of Nashville and Davidson County, Tennessee, 129 S. Ct. 846 (2009), the US Supreme Court unanimously ruled that an employee engaged in protected activity under Title VII‘s retaliation provision by answering an employer’s questions in connection with a sexual harassment investigation started by company rumors about a male supervisor. Justice Souter wrote the majority opinion, joined by Roberts, Stevens, Scalia, Kennedy, Ginsburg, and Breyer. Justice Alito wrote an opinion, concurring in the judgment, joined by Justice Thomas.

Ms. Crawford Responds to an Investigation into Sexual Harassment

Here is what happened: Rumors started circulating about sexually inappropriate behavior by a male supervisor, Gene Hughes, at "Metropolitan Government of Nashville and Davidson County" ("Metro"). A human resources employee started investigating, and asked Vicky Crawford whether she had seen any inappropriate behavior by Mr. Hughes. Crawford responded yes, and described several instances of sexually inappropriate behavior. For example, Ms. Crawford had asked Mr. Hughes "what’s up", and he responded by grabbing his crotch and saying "you know what’s up". On another occasion, Mr. Hughes grabbed Ms. Crawford’s head and pulled it toward his crotch. The human resources employee talked to two other employees who similarly reported sexually harassing behavior from Mr. Hughes.

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