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That smarts! Porn “sting” operation gets employer “stung” for retaliation

By: Robin Shea

February 21, 2017

This should have been an open-and-shut case. For the employer, that is, not the employee.

Lufkin Industries, Inc., had an employee, William Fisher, who was a 55-year-old African-American. One day, Mr. Fisher got into a verbal tiff with his 31-year-old white supervisor, and the supervisor called him “Boy.” Mr. Fisher was offended and complained to the company’s vice president of Human Resources. After an investigation, the company determined that the supervisor did not mean “Boy” in that way, and everybody lived happily ever after.

For about a month.

Then, a white co-worker of Mr. Fisher went to the boss of the supervisor who had called Mr. Fisher “Boy” and complained to the boss about the fact that Mr. Fisher had complained about the supervisor a month earlier. Do you follow me?

In the course of the discussion between the co-worker and the boss, it came to light that Mr. Fisher allegedly sold pornographic DVDs out of his lunch box. The boss suggested that the co-worker purchase DVDs from Mr. Fisher in a type of “sting” operation. The co-worker said he wasn’t comfortable doing this, but the boss allegedly told him, “You scratch my back, and I’ll scratch yours.”

So the co-worker bought one DVD from Mr. Fisher, which was blank. The boss told the co-worker to try again, so he did. The boss viewed the DVD and determined that it was pornographic. Then he watched it 100 more times, just to make sure. (I’m kidding about that part.)

Mr. Fisher was then called into a meeting and asked about his “business.” He responded that he didn’t know it was against company policy to “trade.” Mr. Fisher was then escorted to his locker, in which was an envelope with five DVDs, including the Academy Award-winning “Interracial Cherry Poppers XXX,” the critically acclaimed “XX White Hot Nurses XX,” and that beloved family favorite “Nina Hartley – Stroking to the Oldies.” Mr. Fisher claimed that the DVDs were planted, but a handwriting analysis indicated that it was his handwriting on the DVDs. (This leads me to believe that the DVDs were bootlegged, too.) The investigation team then asked to search his car. Mr. Fisher cooperated at first, but then left the premises without allowing his car to be searched.

As a result, he was suspended and then terminated “for a serious violation of company policy.”

I know what you’re thinking right now, because I thought the same thing – ok, so this guy engaged in protected activity when he complained about the “Boy” remark, but how can the company tolerate selling porn at work? Surely that’s a legitimate, non-retaliatory reason to fire!

Not in this case.

First (“and foremost,” as they say), employees were allowed to have porn at work.

Second, employees were allowed to buy and sell and trade stuff at work.

Third, the only work rule that arguably applied to Mr. Fisher would have provided for a warning, not a termination.

Fourth, this whole “sting” operation stank to high heaven. And the odor was “retaliation.”

Thus, even though Mr. Fisher allegedly (1) sold porn at work, (2) lied when confronted about it, and (3) fled the car search, the employer was liable for retaliation. The Court said, “We decline to provide . . . an incentive” to “supervisors motivated by retaliatory animus to initiate groundless investigations with the purpose of causing the targeted employees to resist them, thereby leading to the employer’s adverse actions.”

Huh?

In plainer language, if an “investigation” is begun for an illegal reason (like discrimination or retaliation), then the employer may not be able to take action against the employee for failing to cooperate in the investigation.

Interestingly, the court found that Mr. Fisher’s possession of porn at work did not violate the sexual harassment policy because no one complained about it, and there was no indication that anyone had even seen the porn except for Mr. Fisher’s customers, all of whom presumably wanted to see it. I assume possession of inappropriate material was not addressed in Lufkin’s policy — and, as a matter of practice, porn was tolerated in the workplace. Be sure that your no-harassment policy is clear that mere “possession” of inappropriate material is a violation of the policy. And don’t tolerate porn at work!

Robin Shea is a Partner with the law firm of Constangy, Brooks, Smith & Prophete, LLP and has more than 20 years' experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act), the Genetic Information Non-Discrimination Act, the Equal Pay Act, and the Family and Medical Leave Act; and class and collective actions under the Fair Labor Standards Act and state wage-hour laws; defense of audits by the Office of Federal Contract Compliance Programs; and labor relations. She conducts training for human resources professionals, management, and employees on a wide variety of topics.

By: Robin Shea

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