Originally published for HR California
Employers must regularly navigate the challenges of handling complaints brought by employees in the workplace. While many complaints relate to daily nuisances involving coworker or customer interactions, increasingly, employers are receiving workplace complaints that involve serious claims of discrimination, harassment or retaliation that warrant further investigation — and what happens after the investigation concludes can lead to challenges for all involved, both in the legal system and the workplace.
In a recent California appellate decision, the court found in favor of the California State University’s (CSU) Board of Trustees’ decision to terminate a supervisor — not because of the result of the underlying investigations, but because of a supervisor’s behavior following the internal investigations (Martin v. Board of Trustees of California State University, No. B303509 (Nov. 14, 2023)).
The court held that CSU established a legitimate reason for terminating a supervisor when it decided his actions — complaining and questioning subordinates about the investigation — indicated he was no longer able to exercise discretion or sound managerial judgment and decision-making.
Background
In 2014, Jorge Martin was hired as the Director of University Communications at CSU Northridge’s Marketing and Communications Department, where he oversaw three to five employees who produced ongoing communications for the department.
Over the next few years, two separate employees filed complaints against Martin. One employee, Shante Morgan-Durisseau, alleged racial discrimination, harassment and retaliation. A second employee, Hansook Oh, alleged discrimination on the basis of race and sexual orientation, sexual harassment, and a hostile work environment.
CSU’s Equity & Diversity Department (E&D) investigated both claims and concluded that Martin did not specifically violate CSU’s policy prohibiting discrimination, harassment and retaliation. However, the investigation did conclude that Martin violated the CSU policy by creating a hostile work environment:
“When taken in totality, Mr. Martin’s actions (making a remark of a sexual nature to Ms. Sanchez, repeatedly commenting on her attire, discussing females’ physical appearances, making reference to employees’ personal relationships and Mr. Martin indicating to Ms. Oh that the inclusion of those in the LGBTQ community is secondary to concerns as to how some alumni will react to certain content) amounted to conduct that is sufficiently severe and pervasive that a reasonable person in Ms. Oh’s shoes could, and indeed Ms. Oh did consider those actions as creating a hostile and offensive work environment.”
As a result, Martin was issued a “Memorandum of Counseling” and ordered to complete sensitivity training and attend management coaching sessions with human resources. This memorandum also stated that Martin had created a hostile work environment for his subordinates and, as a leader and role model, he needed to understand his impact on others and ensure he “treated all members of the university community with respect, avoiding any situation that could be construed as harassing, discriminatory, or retaliatory.”
The memorandum concluded that, “[t]here must be immediate and sustained change” in Martin’s interpersonal interactions and that a failure to change “may have a negative impact to [his] position with the university.”
A few months later, CSU Northridge’s student newspaper published an article detailing a lawsuit against CSU brought by the first complainant, mentioning Martin by name. CSU’s response to the article was a comment stating the lawsuit had no merit and that CSU was committed to ensuring a positive work environment. Martin was instructed not to speak publicly about the article or a subsequent opinion piece entitled, “How to deal with harassment in your future workplace” penned by one of the complainants who ended the article with various hashtags, including “#comeatmebro.”
However, Martin spoke to one of his subordinates about both the articles and her statements during the investigations. Martin told her the hostile work environment finding was “highly questionable” and that the investigations were biased against him.
The employee later testified that Martin asked if she was on his side about 10 times, making her uncomfortable. She went to the media relations director about her interaction with Martin because she “felt threatened and unsafe at work” and wanted to talk to someone to cover herself in case something happened to her.
CSU decided to terminate Martin after determining he could not be an effective department leader because he disregarded CSU’s direction regarding professionalism, staff could not work with him, and subordinates felt intimidated and threatened by him. CSU “offered to characterize the termination as a resignation if Martin signed a severance agreement that included a release,” but Martin didn’t accept the offer, so they terminated him.
Martin requested that CSU reconsider his termination. In its letter declining to rehire Martin, CSU stated the basis for terminating Martin was that his “conduct negatively impacted [his] ability to lead [his] team. [He was] no longer able to exercise discretion and clear managerial judgment and decision-making.”
Litigation Follows
Martin ultimately filed a complaint against CSU alleging gender, race, color and sexual orientation discrimination under the Fair Employment and Housing Act (FEHA); race, gender and sexual orientation harassment; and failure to prevent harassment and discrimination. Martin alleged that:
- He experienced discrimination and harassment because he is a middle-aged, light-skinned, Mexican American, heterosexual and cisgender male;
- CSU created a hostile work environment and subjected Martin to unwanted harassment; and
- The hashtag “#comeatmebro” in the opinion article published in CSU’s newspaper was harassment based on him being male.
CSU filed a motion for summary judgment (to dismiss Martin’s claims) and the trial court granted it in 2019.
Now, in 2023, the appellate court concurred with the lower trial court, finding Martin could not demonstrate he was performing competently, and no discriminatory intent could be inferred by his termination. Ultimately, “an employer is entitled to summary judgment if, considering the employer’s innocent explanation for its actions, the evidence as a whole is insufficient to permit a rational inference that the employer’s actual motive was discriminatory [or retaliatory].” Even assuming Martin could prove his discrimination case, CSU submitted unrebutted evidence that Martin was terminated for a legitimate, nondiscriminatory reason.
Additionally, the court found that Martin was unable to produce evidence showing a hostile work environment, which requires a showing “that the defendant’s conduct would have interfered with a reasonable employee’s work performance and would have seriously affected the psychological well-being of a reasonable employee.”
And despite Martin’s allegations about #comeatmebro in the opinion article, the court held the gender-based nature of the hashtag was “ambiguous at best,” and the article did not mention Martin by name.
Employer Takeaways
While the case of Martin v. Board of Trustees is fairly fact specific, there are a few notable lessons for all employers:
- Employers aren’t required to list the reason for termination in the separation notice. Martin claimed he had evidence of pretext because his termination letter did not identify the reason for his termination, but the court expressly held that at-will employees do not have the right to a hearing or to be informed of the reasons for their termination.
- Employers should still provide consistent, coherent reasons for termination. While it is not necessary to detail the reasons for a termination in any written correspondence, it is generally wise to be consistent to protect against claims of discriminatory motive.
- Employers do not have to treat different positions the same. Because CSU presented a legitimate reason for termination, Martin had to establish pretext by showing he was treated differently from another employee who was “similarly situated” to him — which was that Oh wasn’t punished for speaking to another employee about the investigation or for writing the opinion article, and Martin argued that this was evidence of discrimination against him. But the court held that no inference of discrimination reasonably arises “when an employer has treated differently different kinds of misconduct by employees holding different positions.” In this case, Oh was a subordinate; a temporary, contract employee; and she didn’t work at CSU when the opinion article was published. The two situations could not be reasonably compared.
- Employers faced with potential termination decisions ultimately should make decisions that benefit and protect not only their business, but also the employees within it who trust the company to protect them and ensure a safe, cooperative working environment.
- Overall, employers must take employee complaints seriously, timely investigate, rely on facts, and stay consistent throughout any investigation and discipline decisions. As this case demonstrates, the courts will generally side with the employer’s ultimate employment decisions when the employers follow these steps and can demonstrate a legitimate business reason for making such decisions.
