A Co-Worker's Discriminatory Sabotage Of Another Employee Can Result In Employer Liability

Published in New Hampshire Business Review - July 2014

Claire complains to Amy in HR that a co-worker Dan is giving her a hard time and keeps telling others she is a terrible worker. Claire declares a year ago she turned Dan down for a date, which riled him. Amy speaks with Claire's supervisor and discovers that he is considering terminating Claire because he is unhappy with her performance. The supervisor also comments that other employees have expressed unhappiness and lack of teamwork with Claire's performance. What should Amy do?

On May 23, 2014, the First Circuit Court of Appeals held that an employer can be held liable for discrimination under Title VII when it terminates an employee who has been maligned by a jilted co-worker intent on revenge. As a matter of first impression, the Court fashioned a 3-part test and held an employer will be liable if: (1) the co-worker acted, for discriminatory reasons, with the intent to cause the employee's firing; (2) the co-worker's actions were in fact the proximate cause of the termination; and (3) the employer was negligent in allowing the co-worker to achieve the desired effect because it knew or reasonably should have known of the discriminatory motivation.

As claimed in Antonio Velázquez-Perez v. DDR, Corp., Velázquez served as the regional manager at DDR, a shopping center management company, from November 2007 until his termination on August 25, 2008. Velázquez's immediate boss was Rolando Albino and Albino's boss was Francis Xavier González. Rosa Martínez was DDR's human resources representative. In her role, she provided advice to management on HR issues. Velázquez admitted that he had a good (and sometimes flirtatious) relationship with Martínez but that ended in April 2008 when he turned down her repeated advances. Immediately, Martínez threatened to get him fired. Velázquez complained to Albino who advised Velázquez to send her a conciliatory email or "[s]he's going to get you terminated." Later, he again complained to Albino and González about her threats.

Martínez began sending emails criticizing Velázquez's work to Albino and González. Albino was also expressing unhappiness with Velázquez's work performance and his receipt of unflattering comments by Velázquez's subordinates. Albino wanted to put Velázquez on a performance improvement plan but Martínez went to senior officials at corporate headquarters and lobbied for termination. Ultimately, Velázquez was terminated for...