A recent 2nd Circuit Court of Appeals case shows how a lack of patience, jumping to conclusions and ignoring common sense can lead not only to the wrong conclusion but to protracted litigation.  In Vasquez v. Empress Ambulance Service, Andrea Vasquez, an EMT, claims that Tyrell Gray, a dispatcher and co-employee, made a romantic overture toward her before her night shift began.  Mr. Gray followed up his overture with a photo of his “erect member” sent via text message to Ms. Vasquez during her shift.  Ms. Vasquez completed her shift in the early morning hours but was distraught.  She complained to her supervisor who had her complete a formal complaint on a company computer.  While completing the formal complaint, Mr. Gray happened to walk in, observed her distress and nervously asked if she was ok.  When she failed to respond, he asked if she was reporting him.  Mr. Gray left the room.  He spoke with another EMT and attempted to convince him to lie about Mr. Gray and Ms. Vasquez being involved in a romantic relationship.  The other EMT declined.  Later that same morning, after submitting the complaint, Ms. Vasquez’s supervisor and a HR representantive met with her about the complaint.  They assured her they would take the complaint seriously and sort it out.  Ms. Vasquez offered to let them see Mr. Gray’s text messages on her phone.  They declined and Ms. Vasquez opted to wait at the office until the investigation was completed.  After leaving Ms. Vasquez’s presence, Mr. Gray cooked up his response.  Using his knowledge of Iphone, he fabricated a text message response from Ms. Vasquez which included a scantily clad photo of (purportedly) her sent in response to his photo.  He printed the fabricated text message exchange out which included his photo and the purported photo of her.  When questioned by HR, he provided paper copies of the text message exchange that he created.  HR believed his version of the event, that he and Ms. Vasquez were engaged in a romantic relationship.  That same morning, HR met with Ms. Vasquez, her supervisor and Union representative and terminated her employment for engaging in sexual harassment.  During the hearing, Ms. Vasquez denied the photo from Gray’s text messages was her, denied sending any text message in response to Gray’s photo and offered to let the HR rep and supervisor look at her phone.  They declined to look at her phone.

Ms. Vasquez filed suit in federal court in New York asserting she had been terminated in retaliation for complaining of sexual harassment.  Empress filed a motion to dismiss arguing it could not be held liable for the actions of Gray in fabricating the text message exchange.  The district court agreed and dismissed the case.  Ms. Vasquez appealed to the Second Circuit Court of Appeals located in New York City.  The Second Circuit saw the case differently, overturning the dismissal and remanding the case back to the district court for discovery and trial.  Understand, the record in this case is limited because it is solely based upon Ms. Vasquez’s complaint, no deposition, no discovery was engaged in and therefore the record is limited to Ms. Vasquez’s allegations in the lawsuit she filed.

What the court based its ruling on was the negligent manner in which Empress conducted their investigation.  The court pointed to the failure to examine Ms. Vasquez’s phone, the fact they took Gray’s version at face value and were not suspicious of the fact that he already had printed the text message exchange before he had been told of Ms. Vasquez’s complaint by HR.

Here is where the Court stretches the law.  The Second Circuit cited to Ellereth for the idea that an employer can be liable for the conduct of employees and the cat’s paw theory to transfer the purported retaliatory motive of Gray to the Empress.  I’m not sure how they ascribe retaliatory motive to Gray, his motive was more likely to keep from being fired.  The court went to pain staking lengths to state that an employer will not be liable for a false report by a co-employee when the employer acts in good faith and without negligence.  Only when the employer acts negligently with respect to information provided by a co-employee will that co-employee’s discriminatory animus be transferred or imputed to the employer.  The Second Circuit stated, “Put simply, an employer can still ‘just get it wrong’ without incurring liabilty under Title VII, but it cannot ‘get it wrong’ without recourse if in doing so it negligently allows itself to be used as conduit for even a low level employee’s discriminatory or retaliatory prejudice.”

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