Employers Can Be Liable for Non-Supervisors Who Malign an Employee’s Job Performance

Written by Robert G. Brody and Alexander Friedman on July 18, 2014

The United States Court of Appeals for the First Circuit (“First Circuit”) recently held an employer could be liable for sex discrimination under Title VII where an employee’s job performance is maligned by a co-worker.  The co-worker’s romantic overtures were rebuffed by the employee, the co-worker had intended to cause the employee’s termination, and the employer knew or should have known of the discriminatory motivation.

In Velazquez-Perez v. Developers Diversified Realty Corp., Antonio Velazquez-Perez (“Velazquez”) was fired due to criticism of his job performance by Rosa Martinez (“Martinez”), a human resources representative.  Velazquez joined Developers Diversified Realty Corporation (“DDR”) as an operations manager and was later promoted to regional general manager.  He and Martinez first got along well and they occasionally jokingly flirted, though when Martinez expressed her romantic interest more openly, Velazquez would gently rebuff her.  This changed after an incident at a hotel during a company business trip when Martinez saw Velazquez enter a hotel with two other female employees, confronted them, tried to force her way into his hotel room, and refused to leave until he threatened to call security.  Velazquez complained to his supervisor about this incident but nothing was done and the company had no formal complaint process.  Following this incident, Velazquez openly rejected Martinez’s advances.  He and Martinez exchanged angry emails in which Martinez made statements such as, “[I]f somebody knows your personal weaknesses, that person is me” and “I cannot allow any of you to risk the team’s success.”  Velazquez perceived these statements as threats, and a co-worker also testified that he overheard Martinez saying things such as “you are nothing without me” to Velazquez in an intimidating or threatening manner.

Martinez complained about Velazquez’s work performance to his supervisors and instigated a performance review in which the supervisors considered both her criticisms and their own issues with his work.  They ultimately gave him a formal warning memo and placed him on a performance improvement plan.  After a final incident in which Martinez professed her love for Velazquez and he told her he wasn’t interested, she took her complaints to senior officials.  Velazquez’s supervisors then spoke to him directly about the criticisms and ultimately decided to fire him.

The 1st Circuit held that Martinez’s discriminatory efforts could reasonably be found by a jury to be the cause of Velazquez’s termination.  However, the Court held no reasonable jury could conclude Martinez was Velazquez’s supervisor and therefore DDR could not be vicariously liable for her conduct.  Velazquez’s supervisors were other individuals, and they were the ones who looked at Martinez’s and others’ criticisms and ultimately made the decision to fire him.  The Court also ruled Velazquez could not prevail on a hostile workplace claim because Martinez’s conduct was not severe and pervasive enough to alter the conditions of his employment and create an abusive working environment.

Nevertheless, the Court did hold that DDR could be found liable for negligently allowing Martinez’s criticisms of Velazquez to cause him to get fired.  The Court explained that 1) when a co-worker’s statements maligning an employee were made for discriminatory reasons and with intent to get the employee fired, 2) the statements caused the employee’s termination, and 3) the employer knew or reasonably should have known of the discriminatory motivation, the employer is liable.

This is a cautionary tale for employers – terminating an employee based on a co-worker’s complaints without properly investigating the nature of those complaints could result in liability.  A worker with an axe to grind against a fellow employee could cause liability for the company if management does not properly vet the complaints against the other employee.  Do not get caught in this trap!  If an employee criticizes a co-worker’s job performance, make sure you understand the context of the complaint.  Also, be sure to regularly take the pulse of your work environment.  Management should stay aware of and treat seriously incidents such as the hotel confrontation in this case.  Doing so will give you a better understanding of which employee complaints and criticisms have merit, and which may have been made with a discriminatory purpose.

Brody and Associates regularly provides training and counseling on maintaining a harassment-free environment and on employment law issues in general. If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.

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Related Topics: Discrimination and Harassment, Sex

About the Authors

Robert G. Brody is the founding member of Brody and Associates, LLC. He has been quoted and published in national publications and appears as a guest T.V. commentator on contemporary Labor and Employment issues. Learn More

Alexander Friedman is an Associate with Brody and Associates, LLC. He works on both Labor and Employment Law matters. Learn More