Murtha Means More

September 6, 2016 - Labor and Employment Group News: "Dispatched" Employee's Retaliation Claim Revived Where Low Level Co-Worker Provided "Doctored" Evidence

By: Barry J. Waters

Plaintiff’s version of events

Andrea Vasquez, an emergency medical technician on an ambulance crew out on her midnight shift, received a text message from the Company dispatcher, Tyrell Gray, with the caption, "Wat u think" – and a photograph of his erect penis. This text followed earlier romantic overtures Gray had made, including asking Vasquez out on dates (which she had refused, saying that she had a boyfriend), putting his arm around her and touching her shoulders. Vasquez did not respond to the text message, or to a follow-up message from Gray, as she continued working.

When Vasquez returned to the office at the end of her shift, she was "extremely embarrassed, distraught, and crying." She promptly informed a Company field supervisor about the incident. Promising that "[w]e’re going to deal with this," the supervisor walked Vasquez to a computer in the office and asked that she compose and send a formal complaint right away. While Vasquez was typing her complaint, Gray entered the room, saw that she was crying and typing at the computer, and said: "You’re reporting me, right?" Gray then left the room, told a co-employee that Gray was afraid he was going to lose his job and asked the co-employee to lie for him and tell their supervisors that Vasquez and Gray had been in a romantic relationship. The co-employee refused and Gray left the building. After Gray’s departure, Vasquez finished writing her complaint and met with one of her supervisors and an HR Representative. They thanked Vasquez for telling her story, assured her that "[w]e don’t tolerate this sort of behavior here" and promised to "sort the situation out." Vasquez offered to show the supervisors Gray’s messages on her cell phone but they declined to view them.

Meanwhile, Gray "manipulated a text message conversation on his iPhone to make it appear as though a person with whom he had legitimately been engaging in consensually sexual banter" was Vasquez. He then took screen shots of portions of the conversation, printed them off and later presented them to management as evidence that he and Vasquez had been in a consensual sexual relationship.

By the time Vasquez met with a committee consisting of her union representative, the Company President, and the HR Representative, they had reviewed Gray’s screen shots and had already reached the conclusion that Vasquez was "having an inappropriate sexual relationship" with Gray and had proof from Gray that Vasquez had been harassing Gray. The committee refused to accept Vasquez’s version of events, refused to look at her cell phone, and fired her for engaging in sexual harassment.

Can a low level employee’s retaliatory intent be imputed to the Company?

The United States District Court for the Southern District New York said "no" and dismissed the case, holding that because Gray was a low level employee, and not a supervisor or manager, Gray’s retaliatory intent could not be imputed to the Company and therefore, the Company could not be held liable for retaliation. The Company had successfully argued that there was no evidence that its managers had any bias against Vasquez or that her termination was tainted by discrimination or retaliation. On August 29, 2016, the Second Circuit Court of Appeals (covering New York, Connecticut, Vermont and Puerto Rico) reversed the District Court and sent the case back to the District Court for further proceedings. Vasquez v. Empress Ambulance Service, Inc., Docket No. 15-3239-cv (2d Cir. August 29, 2016).

Company’s own negligence in conducting the investigation gives effect to the retaliatory intent of even a low level employee

The Second Circuit adopted the reasoning of a 2014 First Circuit case, in which that Court (covering Massachusetts, Rhode Island, Maine and New Hampshire) held that where the co-worker’s discriminatory motive causes the employee to be terminated, the employer can be held liable for the co-worker’s discriminatory intent. Liability attaches where the employer knew or should of known of the co-worker’s animus and its negligence allows the co-worker to achieve his desired end. The Second Circuit ruled that the Company could be found negligent in its investigation by "obstinately refusing to inspect Vasquez’s phone or to receive any other evidence proffered by Vasquez in refutation" of Gray’s assertions, which despite circumstance that made his story suspect, the Company "blindly credited." Therefore, "a reasonable jury could find that [Company] acted negligently in terminating Vasquez solely on the basis of Gray’s accusations."

Legal Standards

1. Under federal, Connecticut and New York law, the employer is not strictly liable for the discriminatory acts of its supervisors or rank-and-file workers. The Company has a defense if it did not know of, or had no reason to know of, the discrimination, acts promptly when a complaint is made and conducts a reasonable investigation in good faith. Under Massachusetts law, the Company does not have this defense and is strictly liable for the discriminatory acts of its supervisors but the defense applies in the case of its rank-and-file employees.

2. An employer is generally not liable for retaliation when it is not motivated by discriminatory intent. However, discriminatory intent can be imputed to the employer where a non-biased decision-maker relies on information provided by a biased supervisor. In the First and Second Circuits, the Company’s liability can now attach where the Company negligently relies on false information provided by a biased rank-and-file employee.

3. The Company is not liable simply because it incorrectly relies on a false report from an employee acting out of unlawful animus. The touch-tone is the employer’s negligence in relying on the false report.

4. The Company is also not liable for retaliation even if it negligently relies on a false report, unless those false accusations themselves were the product of discriminatory or retaliatory intent.


1. We regularly see in the case reports examples of slipshod investigations and uncritical acceptance of one employee’s version of events, usually the manager’s report. The Vasquez case demonstrates that employers must exercise care in critically evaluating the reports of co-workers as well.

2. Prompt, unbiased and thorough investigations are essential to reducing liability for discrimination and retaliation.

3. View with some skepticism all documents provided by the accuser and the accused. As this case demonstrates, documents can be manipulated. For example, an email can be forwarded and then edited. It is often advisable to get your IT Department involved in reviewing electronic evidence.

If you have any questions on Labor and Employment issues, please contact:

Barry J. Waters at (203) 772-7719 or

Michael Colgan Harrington at (860) 240-6049 or

Jennifer A. Corvo at (860) 240-6055 or

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