The recent reinstatement of a $3.5 million award of
punitive damages by the United States Court of Appeals for the Seventh Circuit
highlighted the importance of responding promptly, thoroughly and fairly to
employee complaints of harassment, even where the harassers are unknown.
It also serves as a reminder that the appropriateness of an
employer's response to harassment will be measured against the gravity of the
harassment and that where harassment persists an employer must "progressively
stiffen" its efforts.
Lessons learned for employers and a copy of the court's
opinion are at the end of the blog.
Three Years of Anonymous Harassment &
The events that produced this case started in early 2002
when someone put sugar in the gas tank of Otto May's car. May was a
pipefitter at Chrysler's assembly plant in Belvedere, Illinois. Over the
next three years, Otto May was the target of over 50 anonymous instances of
harassment and death threats. In addition to sugar being placed in
the gas tanks of two of his cars, the harassment ranged from graffiti at the
plant to death-threat notes in his tool box to punctured tires to a bizarre
instance of a dead bird wrapped in toilet paper to look like a Ku Klux Klansman
(complete with pointy hat) being place in May's work station.
Here are a few examples of the disturbing and threatening
May contacted the local police, the FBI, the
Anti-Defamation League and complained repeatedly over the three years to
The Employer's Response
Allowed to Park in
May complained to security at the Chrysler Belvedere
plant and to the local police in February of 2002. Three months later
when his tires were punctured, he again made a report to Belvedere plant
security and the local police. Because he didn't receive a response from
plant security locally, May also complained to human resources at Chrysler's
headquarters in Michigan. Ten days after he contacted Chrysler's
headquarters, Kim Kuborn, a human resources supervisor at the Belvedere plant
contacted May and told him he could park in the salaried lot, which is
monitored by cameras. This solution did not satisfy May, however, because
a Chrysler security officer told him that some of the cameras did not record,
that some did not work and that even the ones that did work were not monitored.
Meetings Held With All
Three Shifts About Harassment Policy
The threatening messages (including graffiti, printed
chain emails, hand-written notes) started in the first half of
2002. May complained to his supervisor, labor relations and
security and provided Chrysler with the notes.
In September of 2002, the head of human resources and the
head of labor relations for the Belvedere Plant held meetings with all three
shifts of the skilled trades - about 60 people. Some of the workers were
upset about the meeting and complained that the skilled trades were being
"singled-out" and that they wouldn't be able to have "fun" at work
anymore. May was upset because only 60 of the more than 1000 plant
employees who had access to the areas where the notes and graffiti targeting
him was found were included in the meetings. May also asked Chrysler to
install surveillance cameras and swipe-key door locks to monitor who was coming
and going from particular areas.
Staff Advisor from
Chrysler's Corporate Headquarter's Diversity Office Visits Plant
Just a few days after the meetings described above, there
was more threatening graffiti and at least five more instances of graffiti in
October and November of 2002. After receiving another menacing note in his
toolbox on December 7, 2002 and feeling like Chrysler was doing nothing to stop
the harassment, May contacted the Anti-Defamation League. In a letter
dated December 26, 2002, the Anti-Defamation League wrote a letter to
Chrysler's General Counsel in Michigan informing him that "Mr. May has
reportedly been the victim of numerous death threats placed in his toolbox,
scrawled on his lunchbox and in the freight elevator as well as in other
areas." The League encouraged Chrysler to take all necessary remedial
The letter to the General Counsel was forwarded to Scott
Huller, a Staff Advisor in Chrysler's Corporate Diversity Office, whose
responsibilities included investigating civil rights issues at Chrysler's
manufacturing facilities Huller traveled from Michigan to the plant
in Illinois and met with May On January 16 and 17, 2003. May told Huller
he feared for his life and was distressed and depressed. May again asked
that surveillance cameras be installed.
Huller asked May for a list of suspects and May gave him
a list of nineteen employees. Huller returned to Michigan without interviewing
any of the suspects or doing any further investigation. The only action
Huller appears to have taken after meeting with May was to give the list of the
nineteen employees to Kim Kuborn, a HR supervisor at the Belvedere plant and
notably also the wife of one of the suspects identified by May.
Plant Entry and Exit Data
Kuborn took the nineteen names given to her by Huller
(including her husband) and created a spreadsheet. She then used the
plant entry and exit data to determine which of the 19 suspects was in the
plant at the times when the incidents might have occurred.
Protocol Implemented for
Handling Incidents Involving May
Sometime in 2003, Chrysler implemented a protocol for
handling incidents involving May. The protocol required that anyone who
found graffiti or a note was to notify HR and security. A picture would
be taken and the incident documented. If grafitti was involved, it was to
be cleaned-up. Kuborn was responsible for keeping copies of the pictures
and documentation in a binder.
Handwriting Expert Hired
In May 2003, Chrysler's lawyers retained a forensic
document examiner in an effort to identify the anonymous person(s) responsible
for the graffiti and notes. The expert thought it likely that only one person
was responsible. Based on a review of daily entries in plant logbooks,
the expert asked for handwriting samples from sixty employees.
Although the expert continued his analysis throughout 2004 and 2005, he was
never able to reach a conclusion about who did it.
The Court's Analysis
Jury and Trial Judge
At the trial, the jury was asked to decide four issues:
After a seven-day trial, the jury found for May and
awarded him $709,000 in compensatory damages and $3.5 million in punitive damages.
Chrysler filed post-verdict motions asking the trial judge to set aside the
jury's verdict. The trial judge determined that the jury's compensatory
damages award of $709,000 was excessive and May decided to accept a reduction
of the award to $300,000 to avoid a re-trial. The trial judge also
vacated the jury's punitive damages award, finding that May failed to present
sufficient evidence that Chrysler recklessly disregarded May's
federally-protected rights. Both sides appealed.
The Court of Appeals
In a strongly worded opinion, the Court of Appeals
affirmed the jury's finding of liability and reinstated the jury's award of
$3.5 million in punitive damages.
Basic Liability Analysis
In discussing Chrysler's liability, the Court of Appeals
was dismissive of Chrysler's response during the first year of written threats
and harassments, summarizing the company's efforts as "They held a
meeting. They interviewed May." Similarly, the Court of Appeals was
not persuaded by what it called "Chrysler's behind-the-scenes" efforts to
document the harassment, analyze the gate records and retain a handwriting
The Court of Appeals also highlighted that the jury heard
about "what Chrysler did not do," including Chrysler's failure to interview anyone
on May's list. In discussing Chrysler's failure, the Court explained:
When an employee has been subjected to repeated threats
over the course of many months and the employer has a list of names, the
employer's investigator should talk to some of those people - or at least a
jury would not be irrational to think so. And perhaps that would be
asking too much if it had explained to the jury that it had a different
approach to the investigation that was also reasonably likely to be effective ...
But the jury heard nothing of the sort. It heard that Chrysler
documented the incidents and used gatering records to narrow the field of
potential suspects. In the face of repeated vicious death threats, a jury
could conclude that Chrysler's document-and-narrow approach was not good
In affirming the jury's finding of liability, the Court
also pointed to Chrysler's failure to install even a single surveillance camera
despite not only May asking them to do so but the police suggesting it as
well. The Court found Chrysler's contention that the plant was too
massive to cover it with cameras and that the union wouldn't have allowed it
any event to be undermined by Chrysler's installation of a camera in 2008 to
try to catch someone destroying company property.
Punitive Damages Analysis
On appeal, Chrysler argued that it cannot be held liable
for punitive damages because it made a good-faith effort to stop the
harassment. The Court of Appeals rejected this argument, stating that
[a] good-faith effort at compliance, however, is not a
matter of declarations about how much the employer cared about a victim
of harassment or about how hard HR employees say they worked to rectify the
situation. When those declarations are belied by the employer's actions,
talking a good game will not immunize an employer from a judgment that it was
The Court seemed particularly troubled by Chrysler's
attempts to show that May himself was responsible for the threatening graffiti
and notes, noting that the "jury was presented evidence that Chrysler was not
as concerned for May as it was about getting rid of him and keeping
costs down." The Court of Appeals was also troubled with Kuborn's (the HR
person principally responsible for May's case and married to one of the suspects)
failure to recuse herself.
Interestingly, although the trial judge did not rule on
whether the jury's $3.5 million award of punitive damages was "grossly
excessive" and, therefore a violation of due process, the Court of Appeals took
it upon itself to ask the parties for supplemental briefing on that
issue. Presumably, this is because the Court of Appeals anticipates that
Chrysler will appeal. After acknowledging that the award is five times
the original compensatory damages amount and eleven times the reduced amount,
the Court concluded, "Chrysler's long-term recklessness in the face of repeated
threats of violence against May and his family is sufficiently reprehensible to
Lessons Learned for Employers
Employers must be prepared to conduct workplace investigations in a prompt,
thorough and fair manner. This means not only
responding promptly but also following-up on reasonable avenues of
inquiry. Here, Chrysler failed to interview even one of the list of
suspects that it had asked May to provide.
Choosing an impartial investigator is critical.
Here, Chrysler selected the wife of one of the suspects to take the lead in
responding to May's complaints. That decision caused even the slightest
discrepancy in the documented follow-up to take on sinister overtones.
Transparency of investigatory process is important.
As I've discussed before on this blog, procedural
fairness is an important theory for employers to understand and
transparency of process is a critical aspect of procedural fairness.
Here, it seems that neither the jury nor the Court of Appeals gave Chrysler
credit for any "behind-the-scenes efforts" to identify the harasser or stop the
Think twice before ignoring a third-party expert's "suggestion." Here,
the police recommended installing a security camera to try to identify the
anonymous harasser. When evaluated in light of Chrysler's subsequent decision
to install a security camera to try to identify who was stealing company
property, the decision to ignore the police suggestion seems especially
Beware of blaming the victim. Chrysler's
defense that May did it all himself was deemed by the Court to be "rather
Click here for a copy of the Court of Appeals decision in
May v. Chrysler Group, LLC,
(7th Cir. 2012) [an enhanced version of this opinion is available to lexis.com subscribers].
more articles about managing workplace conflict at Win-Win HR, a blog by
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