Court Grills Burger King on Complaint Procedure

When 16-year-old Samekiea Merriweather started her first job at a Burger King in Milwaukee, she didn't expect fighting off her boss' sexual advances would be part of her duties. She also didn't expect her boss to fire her after her mother stepped in to complain. But that's exactly what happened.

Through the EEOC on Feb. 17, 2005, Merriweather brought suit against V&J Foods, the parent company of the Burger King where she worked. In the suit Merriweather asked for back pay and benefits, as well as compensation for emotional pain, suffering and humiliation. She also alleged she was fired in September 2003 in retaliation for complaining.

On Nov. 3., 2006, the District Court dismissed EEOC v. V&J Foods Inc. because Merriweather failed to follow the company's complaint procedure. On appeal 7th Circuit Judge Richard Posner disagreed with the lower court's reasoning and on Nov. 7, 2007, remanded the case. Although he agreed that an employer can avoid liability under Title VII for harassment by creating a reasonable mechanism for complaints, he argued that V&J's manual was too complicated to be understood by its young employees.

"The significant part of this ruling for other employers is that if you employ a diverse work force that includes minors, your complaint procedures should be tailored so that they are understandable to all employees," says Joel W. Rice, of counsel at Fisher & Phillips.

Affirmative Defense
Merriweather's troubles began when her general manager, 35-year-old Tony Wilkins, made suggestive comments to her, rubbed against her and tried to kiss her. According to the complaint, he also offered to pay her $500 to $600 to have sex with him in a hotel.

When Merriweather rebuffed his advances, Wilkins allegedly told her "he was tired of doing things for me and he [wasn't] going to do [anything] else for me because I'm sitting here giving my body away for free when he's trying to pay me," Merriweather later testified.

After reading the company's employee manual, Merriweather wasn't sure whom she should inform about the harassment since the harasser was her boss. She complained to a number of shift supervisors, but they ignored her. Finally her mother stepped in and complained to a supervisor. When Wilkins found out about the complaint, he fired Merriweather.

Merriweather responded by filing a complaint with the EEOC, which then filed a case on her behalf. But the
district court dismissed the case because Merriweather hadn't followed the company's complaint procedure.

Reasonable Mechanism
Posner disagreed with the lower court, arguing that V&J's complaint process was too confusing, especially for a minor. And while "an employer is not required to tailor its complaint procedures to the competence of each individual employee," it should tailor its manual to its work force.

V&J's manual instructs employees to file harassment complaints with the "district manager." According to Judge Posner, the manual failed to identify who that person was and how to contact them.

Posner said that "a policy against harassment that includes no assurance that a harassing supervisor can be bypassed in the complaint process is unreasonable as a matter of law."

Merriweather had complained to supervisors but they did not pass along her complaints to Wilkins. When he was told of Merriweather's mother's complaint, Wilkins then violated company policy when he failed to notify his superiors of the complaint.

Had there existed in the company manual clear instructions on whom an employee can contact when they need to go over their boss's head with a complaint, this scenario could have been avoided. This became a major focus
of this case.

"General counsel should review the complaint reporting procedures in their policies to ensure that the procedure refers the employee to an individual within the company and not just a general comment line, and there has to be a clear way to bypass a supervisor if it's the supervisor the employee has complaints about," says Zachary Hummel, partner at Bryan Cave.

Posner also affirmed Merriweather's claim that she was fired in retaliation for her mother's complaint. He said her mother was acting as an agent for her daughter, just as a lawyer would act as an agent to a client. Therefore, he said, "it would be absurd to think [Merriweather] had not been fired for her opposition to the company's mistreatment of her."

"This ruling certainly raises issues for general counsel with regard to the content and complexity of their companies' complaint procedures and in handling potential retaliation claims," Hummel says. "This case may be used to support claims of retaliation by alleged victims of harassment even if the complaint was not raised by the alleged victim, but by someone acting on behalf of the victim."

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Yesenia Salcedo

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