It is risky proposition to rely upon a “paper” compliance program and that is true from planning at the front end to investigating bad conduct at the back end. In a workplace harassment case whose seminal event occurred way back to 2002, Chrysler came as close as one can get to getting dinged hard for falling down on the investigative front.
The case in point is Otto May, Jr. v. Chrysler Group, LLC, Nos. 11-3000 & 11-3109z (7th Circuit) that was finally decided after re-argument on May 14, 2013. In it, the plaintiff asserted various claims under Title VII and 42 U.S.C. §1981, of which only his hostile work environment cause of action made it to trial. The trial produced evidence of a relentless and voluminous attack on the plaintiff by means of property damage, anonymous angry notes, and death threats against him and his family over a period of three years.
The focal point of the still-unknown culprit’s ire was May’s heritage. His German-Jewish grandfather immigrated to Cuba in 1911 and married a Protestant woman. May’s father – raised a Protestant – moved his family to Florida after Fidel Castro seized power. There, May converted to Judaism at age seventeen and married. Subsequently, he was remarried and divorced a number of times, however, his faith never faltered and he considered himself a Messianic Jew. Presumably, he still does.
May started working at Chrysler’s Belvedere Assembly Plant, in Belvedere, Illinois, as a pipefitter. His job required him to repair and maintain equipment used to paint and assemble cars. His problems at work began with damage being done to his automobile in 2002. In February, sugar was poured into its gas tank and then into the tank of the loaner vehicle that he was given to drive during the repair of the first car. These incidents were reported to Chrysler and the local police, as was the next incident when May drove over a homemade spike hidden in rags and placed under his tire roughly three months later.
When these reports didn’t seem to elicit a response from Chrysler, May complained to an HR person at Chrysler headquarters in Michigan. Approximately ten days later, Kim Kuborn, a human resources supervisor who eventually became the principal HR person on the case, called May and told him he could park in the lot for salaried employees, as it was monitored by cameras. This solution didn’t please May, due to concerns about the reliability of those cameras.
Later in the first half of 2002, harassing and threatening messages started to arrive in and around May’s tool box and work stations. The seemingly least-threatening communications made assertions of a homosexual relationship between May and “Chuck”, a friend and co-worker. The most-threatening ones read like this:
“Otto you muther f****r b*****d your family is not safe Cuban Jew f**k scum Jew k**e n****r lover k***s are varmints s***s are roaches n*****s are parasites Exterminate all kill them all We hate f****n J**s n*****s s***s [swastika insignia]”.
These themes proved to be the norm from 2002 through the end of 2005 and the total number of anonymous communications received by May exceeded 40.
During the entire course of his harassment, May continued to complain to Chrysler and as that never seemed to get him relief, he eventually took the problem to the Anti-Defamation League in late 2002. The ADL’s intervention got Scott Huller – a staff advisor in Chrysler’s corporate diversity office – involved in the case. His responsibilities included investigating civil rights issues at Chrysler’s manufacturing facilities.
Huller had never heard of May until he received a copy of the ADL’s letter detailing his problems at work. This was in early January 2003 and it prompted him to travel to the Belvedere plant to interview May on the 16th and 17th of that month. May indicated to Huller that he genuinely feared for his life and asked that security cameras be installed near him and his work station. Huller was more focused on getting a list of suspects, something that May ultimately provided to him. The names of nineteen people May thought might be involved were given to Chrysler and to the police.
Although Huller got a roster of suspects May, he did not interview any of those individuals. Nor did he ask the local HR employees to do so. Instead, he used the list to create a template that would help HR use plant entry and exit data (“gate-ring records”) to determine who was in the plant at the times when the incidents occurred. Kim Kuborn in HR was given the task of compiling these gate-ring records, notwithstanding the fact that her husband was among the suspects named. Huller did no more substantive work on the case and shortly after his exit from the scene, the harassment resumed.
After some additional graffiti incidents, Chrysler attorneys hired a forensic document examiner named Jack Calvert to try to identify May’s tormentor in May 2003. Armed with photographs of the graffiti, an original threat letter from earlier that year, and plant logbooks containing daily entries from numerous employees, Calvert could tell Chrysler’s counsel that he thought a single person was responsible for the anonymous communications. Regrettably, he could not identify who that person was. From that point on, Kim Kuborn continued to review gate-ring records to see who may have been around when subsequent incidents occurred and Calvert was given more handwriting samples to analyze, but no culprit was identified and Chrysler’s internal investigation seemed to fizzle.
In the courthouse, the jury subsequently awarded May $709,000 in compensatory damages and $3.5 million in punitive damages. In response to post-trial motions, the trial court imposed a remittitur of the compensatory damages to $300,000 and vacated the punitive damages. On appeal, the Seventh Circuit affirmed the judgment as to the compensatory damages and reversed on the punitive damages finding that Chrysler’s response to May’s complaints – including its investigation efforts – could have been viewed by the jury as manifesting “malice or reckless indifference to [his] federally protected rights” so as to support punitive. On re-hearing, however, the Seventh Circuit reversed course on the punitive damages issue and affirmed the trial court’s original actions.
Regardless of its finding for Chrysler on punitive damages, the Seventh Circuit’s opinion pummeled the company for its poor investigative showing, not the least of which was its failure to interview a single suspect or witness other than May himself. Whether this oversight was due to budgetary or time constraints that were never mentioned, to top-down indifference to the actual plight of May, or to a frustration with attempting to find what was perceived as the anonymous needle in a haystack, the company’s efforts – or lack thereof – nearly cost it $3.5 million.
That’s a heavy price to have almost paid in private litigation for being a paper compliance tiger. Had this case been picked up by the DOJ as a criminal matter, civil enforcement action, or as the intervenor in a qui tam suit, one could wager that the bullet Chrysler would not have dodged would have been much higher.