Sexual harassment was so common at Fox News that it often went unreported. See Alisyn Camerota’s account. She worked for Fox News for years and now works for CNN. So, she has a platform to speak freely. When she was still new at Fox News, Roger Ailes offered to help her move up in the ranks. But, she would first have to work very closely with him, away from the office, at a hotel. She understood his meaning very well. She describes him today as at times, charming and charismatic. He could also be a bully. She declined his offer. At the time, a single woman, she feared this was the end of her career.

In ten years, she rose as far as being the weekend anchor for Fox News. She left Fox in 2014 for CNN. She told no one about the Fox News CEO’s “offer.” She was embarrassed by the incident. Most women do not report these incidents. Toward the end of her time at Fox, she refused to go into Roger Ailes’ office.

Look at the column by Elaine Ayala in the San Antonio Express News. See that column here. Ms. Ayala recounts the stories of six different women in the San Antonio area, all of whom experienced blatant sexual harassment. Like Ms. Camerota, most chose not to report the incidents. One woman, working at gym, reported harassment by a patron and was told by her male manager to smile more.

in a survey by Cosmopolitan magazine, they found 75% of 2000 working women had been harassed due to their gender. In another study by the University of Colorado, researchers found that women were too afraid to complain. See CBS News report. Yes, sexual harassment is too common.

The Fifth Circuit reversed summary judgment in another case recently. In Caldwell v. KHOU-TV Company, Inc., No. 16-20408 (5th Cir. 3/6/2017), the court addressed ADA and FMLA issues. Gerald Caldwell worked at KHOU TV as a video editor. Due to a childhood disease, he needed the aid of crutches for walking. Mr. Caldwell notified his supervisor he would need time off for upcoming surgeries.

About that time the parent company, Gannett Company notified KHOU that the station needed to reduce their work force. One worker was chosen for lay-off based on documented poor work performance. That editor was given prior warning about his performance. Mr. Caldwell received no such warning. Mr. Caldwell was also chosen. The supervisors initially said he was chosen because he had expressed an unwillingness to work in EDR. Later, in its motion for summary judgment, the employer argued that Mr. Caldwell had not taken the initiative to spend as much time in EDR as the other editors.

Mr. Caldwell filed suit based on the ADA and the FMLA. The employer moved for summary judgment, which was granted. On appeal, the Fifth Circuit reversed the summary judgment. The court found there was substantial evidence of pretext. The employer provided different reasons for selecting Mr. Caldwell for the RIF. The employer first claimed Mr. Caldwell shirked his responsibilities by refusing to do the EDR work he had been assigned. The employer provided this expansion in answer to interrogatories and in a letter to Plaintiff’s attorney. But, in a letter to the EEOC, the employer said he was terminated not because he avoided work, but because of his inability and unwillingness to adjust to new technologies. And, before the district court, KHOU argued that Caldwell did not take the initiative to spend as much time in EDR as other editors. And, contrary to all this evidence, the direct supervisor, Philip Bruce, said “absolutely” there were no job performance issues with Mr. Caldwell. These statements, said the higher court, indicated inconsistent explanations, so as to show genuine issue of material fact.

The lower court had looked at the same evidence and discounted it. The district judge found that many of these statements were not made by Mr. Bruce, the direct supervisor. But, the court of appeals noted that no precedent required that all explanations emanate from the direct supervisor. On the contrary, many cases cite articulated reasons from the employer as a whole. The court cited Burrell v. Dr. Pepper/Seven Up Bottling Group, Inc., 482 F.3d 408 412-13 and n. 11 (5th Cir. 2007) for the proposition that simply stated, an employer’s inconsistent explanations for its employment decisions at different times are probative of whether those statements are pretextual and that cases do consider statements by the employer’s representatives before the EEOC, before the district court and the Fifth Circuit. And, that makes sense. The employer sues the “employer,” after all, not individual supervisors.

The higher court noted that the employer’s explanation had evolved from insubordination to a lack of initiative. Mr. Caldwell himself denied ever expressing a preference for or against EDR. The plaintiff’s supervisors also confirmed they did not recall the plaintiff ever expressing a preference against working in EDR. The employee also testified, and the supervisors confirmed, that it was ultimately the employer’s decision to limit his time in EDR, suggesting the employer was not truthful.

[Note: It is always unwise to try to mislead the court. Judges remember that. It will affect the rest of their decisions. That the supervisors apparently disagreed with the company’s  representative seriously undermines any case.]

The higher court also discussed the lack of opportunities for the disabled worker. The court compared not affording employment opportunities to black workers to not providing opportunities to Mr. Caldwell. The plaintiff had argued that the employer chose not to schedule him time in EDR. The lower court had found that he was not scheduled more time in EDR due to his disability. The Fifth Circuit found that lack of opportunity comparable to a case, Vaughn v. Edel, 918 F.2d 517 (5th Cir. 1990), in which an African-American woman was not given the chance to improve her work performance, because the employer did not counsel her about performance problems. In Caldwell, the court said this situation was similar because KHOU did not give Mr. Caldwell time to work in EDR and improve his technical abilities. This lack of time also indicated that the employer did not counsel Mr. Caldwell and warn him that he should spend more time in EDR.

The higher court also reversed summary judgment regarding Plaintiff’s FMLA claim. See the decision here.

This is the last in a series of cases dating back some three years in which the Fifth Circuit has reversed summary judgment. The most common problem in that line of cases is the failure of the district court to construe facts in favor of the plaintiff. We hope district judges will make more of an effort to construe facts in favor of the non-movant, as they should.

Well, Bill O’Reilly is out at Fox News. His show was cancelled after the settlements surfaced. I wrote about those settlements here. The news report refers to the settlements as allegations. But, when someone pays $13 million for five different accusations, it is more than mere allegations. See CNN news report. Persons do not pay that sort of money unless there is proof to back up such claims.

Of course, this only happened because the five different settlements were exposed. I assume his show would still be on the air if the New York Times had not exposed Mr. O’Reilly’s history of sexual harassment. And, what can we say when the President of the United States has expressed support for two sexual predators, Bill O’Reilly and Roger Ailes?

Not unlike former Pres. Bill Clinton, Pres. Trump has a reputation that will attract lawsuits. One such lawsuit filed by Summer Zervos, accuses the Celebrity Apprentice star of groping her when she was a contestant on his show. She accuses him of groping her and kissing her. She filed suit three days before Pres. Trump’s inauguration. She says he defamed her by denying her accusations. The President has claimed immunity. As some may recall, Pres. Clinton also tried to claim presidential immunity for a sexual harassment lawsuit, but he lost that claim. Ms. Zervos’ lawsuit, however is in state court. This time, the President is claiming immunity in state court, not in federal court. See Politico news report. We will see if that makes a difference.

I previously wrote about Ms. Zervos’ lawsuit here. Earlier, she offered to drop her lawsuit if the President would acknowledge the truth of her claims. Apparently, he decided not to take her up on her offer.

Persons who have a disability are entitled to accommodation if necessary. But, there are limits to the sort of accommodation they can expect. One limit on requests for accommodation is that the person cannot seek an indefinite leave. An employer should not have to wait forever or close to forever for an employee to return to work. In Moss v. Harris County Constable Precinct One, No. 16-20113 (5th Cir. 3/15/2017), the plaintiff, Robert E. Moss had a chronic back injury. He left on FMLA leave. When his FMLA leave ended, his doctor said he needed another six months of leave from work. Three months into that leave, he told his employer he would retire at the end of that six month leave. The new Constable promptly fired him before his six months had elapsed. Mr. Moss filed suit under several different statutes, one of which was the Americans with Disabilities Act. He argued that the Constable failed to accommodate his treatment.

But, the Fifth Circuit found that Plaintiff Moss filed to show he was entitled to an accommodation. It was not clear in the midst of his six month leave that he could perform the essential duties of his job, despite 16 years working with the Constable’s office. His doctor had not released him back to work. Mr. Moss argued that bis leave requests was not indefinite. But, noted the court, his requested leave would have ended the same day he planned to retire. That amounts to an indefinite leave, said the court. See decision here.

I am sure Deputy Moss had some reason for seeking to be counted as an employee through the end of his six months. Perhaps, there was some retirement benefit for reaching a certain date. But, the employer is not required to honor personal reasons.

Donald Trump and Chef Jose Andres have settled Mr. Trump’s lawsuit. I previously wrote about this lawsuit here and here. Then Candidate Trump sued Chef Andres when he refused to follow through on a commitment to open a restaurant in Mr. Trump’s new hotel in Washington, D.C. Chef Andres, a celbrity in his own right, felt that Candidate Trump’s comments in 2015 about Mexican immigrants caused harm to his business and made opening the restaurant more difficult. So, he refused to follow through on a commitment to open a restaurant. See CBS news report.

The Chef offered to settle a few times before this. It appears the President finally accepted his offer.

There are various constructs which serve to limit access to juries for discrimination victims. One of those constructs is the so-called “same actor inference.” The same actor inference provides that if the same manager who hired an employee later fires that same employee, then it is unlikely that that manager was motived by discriminatory animus. The reasoning is that if she hired you knowing you were Hispanic, then it is unlikely she would fire you because you are Hispanic. But, there are limitations to this inference. See, e.g., Soublet v. Louisiana Tax Commission, 766 F.Supp.2d 723, 729 (E.D. La. 2011) (When considering a motion for summary judgment, the same actor inference does not apply when 1) the context involves a failure to promote. Since, a person might be willing to hire the member of a minority for an entry level job but not for promotion, and 2) issue of fact exists whether the manager was responsible for both hiring and promotion); Feingold v. NY, 366 F.3d 138, 155 (2d Cir. 2004) (if “changes in circumstances during the course” of employment, the defense “would not necessarily apply”); Carlton v. Mystic Transport’n, 202 F.3d 129 (2d Cir. 2000) (“the enthusiasm with which the actor hired [plaintiff] … may have waned”). The same actor inference might make sense when the time between hiring and firing is relatively short. But, if years pass between the hiring and firing decisions, it loses considerable utility.

In reality, we never know to any degree of certainty what motivates a manager when someone is fired. An inference is just that, an inference. The Western Districtof Texas recognized the limitations of the same actor inference in Jones v. R.G. Barry Corp., No. 16-CV-154 (W.D.Tex. 3/17/2017). In that case a long-time employee, Sandra Jones, was let go when her position was eliminated in 2015. She was terminated by Mr. Evans. Mr. Evans had promoted the Plaintiff previously in 2007. Ms. Jones was retained by the employer in 2012 when several other members of her department were laid off that year. The employer suggested, but did not directly claim that Mr. Evans had some role in the decision to retain Plaintiff in 2012. Ms. Evans sued for discrimination based on her gender and her age.

The court did not buy the employer’s argument. It noted that the same actor inference is just that, an inference. It can be rebutted. It noted that the employee argued that other reasons may have played a role in the decision to retain the Plaintiff in 2012. She was the only person with knowledge of the distribution center at the time. If an inference should arise from Ms. Jones’ promotion in 2007, then the court would first need to look at who else may have been available for that promotion in 2007. The court found this was sufficient to rebut the inference. It noted correctly that it cannot apply the same actor inference without assessing the credibility of witnesses. Since this was a motion for summary judgment, any inference should be construed in favor of the non-movant, the Plaintiff. See the decision here.

These so-called doctrines, “same actor inference,” “stray remarks doctrine,” honest belief doctrine,” and others are constructed to help us understand the evidence. In reality, they often serve as a bar to a jury trial.  They should never become more important than the evidence itself. When a court reviews a motion for summary judgment, it should keep in mind that these are all just inferences. As inferences, they are of limited utility in deciding summary judgment.

 

It is unfortunate that the President of the United States would defend someone who has settled five separate claims of sexual harassment. Pres. Trump defended Bill O’Reilly yesterday, saying he was a good person. Pres. Trump does not think Mr. O’Reilly did anything wrong. See CBS news report. And, just a year ago, then Candidate Trump also defended Roger Ailes against his accusers.

I think that is the problem. Bill O’Reilly, and perhaps Roger Ailes, and perhaps Donald Trump, are all “good” persons until they are near women. Sexual harassment, racial harassment, all the forms of discrimination involve a perpetrator who is often considered to be a “good” person, except by the person s/he has harassed. Discrimination is by definition complicated.

The boys at Fox News just cannot seem to stay out of trouble. Another female employee has filed suit against Fox News and Roger Ailes. Julie Roginsky filed suit alleging sexual discrimination against the network. She claims that Roger Ailes offered her a regular spot on the show, “The Five,” in return for a sexual relationship. She refused. According to her suit, her career was then sabotaged. She also says the network retaliated against her when she she would not publicly defend Mr. Ailes last year when Gretchen Carlson filed her sexual discrimination lawsuit against the former executive.

20th Century Fox settled Gretchen Carlson’s claims for $20 million last year. The company also settled claims made by Laurie Dhue and Juliet Huddy, who had accused Bill O’Reilly of sexual harassment, for over $1 million each. It paid $2.5 million to Tamara Holder to resolve her allegations against Fox News Vice-President Fransisco Cortes. And, the lawsuit filed last year by Andrea Tantaros is still ongoing. I previously wrote about Ms. Tantaso’ lawsuit here. See Politico news report here.

According to the lawsuit, Mr. Ailes advised the young employee to get involved with older, married, conservative men because they may stray but they are loyal and will always come back. During meetings, he would always insist on a kiss hello from Ms. Roginsky. See CNN news report.

In the meantime, two brands, Mercedes and Hyundai, have pulled their ads from the Bill O’Reilly show. See CNN news report.

Bill O’Reilly, the well-known political commentator on Fox News, has cost Fox News millions of dollars. Fox News has settled five complaints from five different women for sexual harassment. All five of those complaints involved Bill O’Reilly. Mr. O’Reilly settled a case himself in 2004 with Andrea Mackris, a former producer, for $9 million. I previously wrote about Bill O’Reilly and Fox News here. Fox News just recently settled one major lawsuit involving Roger Ailes. Those allegations also involved Mr. O’Reilly. See CNN News report.

Of course, Mr. O’Reilly threatened legal action in reaction to this news story, initially published by the New York Times. Fox News is now being run by Rupert Murdoch’s sons. Apparently, Fox News is making efforts to make the work place more friendly to women. They have held trainingon sexual harassment. Let us hope so. As the news report mentions, besides the five cases resulting in settlement, there were other reports of sexual harassment against the Fox News star. If there is one known complaint, there are surely two or three others in which the victim chose not to complain.

Too, these settlements cost the employer millions of dollars. Bill O’Reilly must have been a real producer for Fox News to accept this level of liability.