Massachusetts Employment Law Letter

Executives speak; subordinates listen

Nobody likes being sued, and it is only natural for people to express some anger and frustration when the process server pays a visit, and the legal bills begin to mount.  Senior officers and other executives are no different, but after a recent decision by the First Circuit Court of Appeals, they would be well advised to bite their tongues in the workplace, and save such outbursts for the car ride home.  Indeed, in a recent decision, the First Circuit ruled that a jury could find that a CEO’s negative feelings about an employee who had a wage class action had infected the entire organization and contributed to his manager’s decision to fire him. The ruling stands to open up an entirely new source of proof to employees in discrimination and retaliation cases, potentially allowing even the lowest-level employees to access and rely upon communications at the highest rungs of the corporate ladder in an effort to establish that an adverse employment decision was the product of a forbidden motive.

“Get rid” of him!

Joseph Travers was employed as a skycap by Flight Services & Systems, Inc. (“FSS”), which provides services to airlines, including JetBlue.  In April 2008, Travers and ten other FSS skycaps filed a class action lawsuit against JetBlue; FSS was later added to the suit.  The skycaps claimed that JetBlue and FSS violated the Fair Labor Standards Act (“FLSA”) by failing to pay the skycaps the federal minimum wage.  Travers was the named plaintiff and undisputed leader of the pack; he encouraged the others to join the suit and coordinated with counsel on their behalf.

His participation did not go unnoticed by the higher-ups at FSS, including Chief Executive Officer Robert Weitzel, Sr.  Indeed, according to Travers’ former supervisor, Robert Nichols, Weitzel was very angry about the lawsuit and its mounting costs, and repeatedly yelled at him to “get rid” of Travers and to talk Travers into “dropping the lawsuit.”  Weitzel allegedly made these statements on conference calls on which the President of FSS also participated.  In response, Nichols told Travers to “be careful” because FSS would be “coming after” him.  Nichols was later fired.

Fast forward two years…

On September 3, 2010, a customer complained that Travers had solicited a tip from her.  She spoke to a JetBlue supervisor and then wrote a statement in which she claimed that Travers told her that a tip was required, “just as you would tip in a restaurant,” that he became angry when she only tipped him $1.00, that he then told someone he was going on break and slammed a door.  She stated that she felt like Travers was “hustling” people.

FSS policy expressly forbids employees from soliciting tips from customers and states that an employee who is found to have solicited a tip will be terminated immediately.  Based upon that policy, Travers was immediately suspended and asked to provide a statement.  He said that he remembered the passenger, but denied soliciting a tip from her – he said that he merely mentioned that her fee did not include a tip, consistent with signs posted at the skycap stand, but confirmed that a tip was optional, as in a restaurant, and that he had apologized that she did not like the service when she only tipped him $1.00.

Three weeks later, with the approval of the human resources director, an FSS general manager terminated Travers for violating the no-solicitation policy.  At the time, Travers and FSS were waiting for the court to rule on Travers’ motion for conditional certification of the FLSA class.

CEO’s bad mood could have infected the entire company

In January 2011, Travers filed a retaliation lawsuit, claiming that he was terminated in retaliation for filing the wage/hour class action.  The district court ruled in favor of FSS and dismissed the suit, concluding that Travers had not shown that he was treated differently than similarly-situated skycaps, had not shown that FSS’s investigation into the passenger’s complaint was inadequate, and had not provided any evidence that would support a conclusion that the CEO’s negative attitude against him was the real cause for his termination or that his violation of the no-solicitation policy was merely a pretext for illegal retaliation.

In a December 2013 ruling, however, the First Circuit reversed that decision.  The court acknowledged that there was no hard evidence connecting the 2008 conversation between Weitzel and Nichols to those who made the decision to fire Travers.  The court further recognized that, usually, the lack of such direct evidence creates a fatal gap in proof.  But the court found that this case was different because it was the CEO who had urged retaliation, and a CEO usually “sets the tone and mission for his subordinates,” many of whom presumably want to give him what he wants.  Additionally, the CEO’s remarks targeted a specific employee and directed the precise action to be taken.  Under these circumstances, it was possible that a jury could find that such strongly held and repeatedly voiced wishes became well known to his subordinates.  A jury could thus find that the CEO’s pre-existing retaliatory motive tipped the scales when the company was trying to decide whether Travers had violated company policy in a way that required his termination.  The case is Travers v. Flight Services & Systems, Inc. (1st Cir. 2013).

CEO’s and others:  keep your comments to yourself!

In distinguishing this case from one in which direct evidence of retaliation would be required, the First Circuit took pains to highlight the importance of the CEO’s personal involvement and the nature of his role within the company.  On the surface, therefore, the decision might be considered a narrow exception to the general rule, and one that is unlikely to apply in the vast majority of cases.

Nonetheless, the opinion should give all employers some pause – to some degree, every executive “sets the tone and mission for his subordinates” and every subordinate desires to do his or her bidding.  So, if a CEO’s comments about an employee or a lawsuit can be imputed to a lower-level manager, and can, by themselves, be enough to show that the manager had a forbidden motive, why couldn’t the same be said for other executives and supervisors?  Indeed, the fewer the degrees of separation between the executive and the decision-maker, the stronger the argument becomes.  Accordingly, employers should make sure that all employees with any degree of supervisory authority, including all senior executives, understand the weight their remarks may carry for the company.

Article By: Erica E. Flores, Esq.
Reprinted from the April 2014 issue of the  Massachusetts Employment Law Letter.