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Ex parte Usrey6/22/2000
ed to "prove" that the stated reason was not the true reason. The main opinion does not even mention this evidentiary requirement that Usrey must meet.
What evidence did Usrey offer to rebut Wal-Mart's evidence indicating that it had terminated Usrey for a legitimate reason? He filed two affidavits. One was his own, and the other was that of another former employee named Teresa Lumpkin. Usrey testified that Kilgore told him that he would be fired "on the spot" if he hired an attorney in connection with his on-the-job injury . Kilgore denied making the statement. Usrey said that Kilgore made that statement on February 24, 1994. (Usrey Deposition, p. 122.) Yet, Usrey was not at that time fired for hiring an attorney. He was not fired for another 10 months. In Usrey's deposition and in his affidavit, he denied the allegations made by the complaining female employee and contradicted the affidavit given by the second employee. He gave a totally different rendition of the facts regarding the allegation of sexual harassment. Considering Usrey's difficulties in dealing with the truth, and considering that there were two witnesses to the sexual-harassment incident, Usrey's self-serving affidavit is less than convincing. Was Wal-Mart wrong to believe two of its other employees and not Usrey? I think not. Surely, liability for wrongful termination should not be based on such a decision by an employer.
Wal-Mart has a very clear and well-published policy on sexual harassment. That policy includes the following statements:
"Any associate who harasses another associate or an applicant for employment for any reason, including but not limited to race, religion, color, national origin or ancestry, physical handicap, sex, age, medical condition or marital status will be subject to disciplinary action, including termination.
"Sexual harassment is a form of sexual discrimination. It is the express policy of the Company that sexual harassment of associates or applicants, by any associate or agent of the Company is unacceptable and will not be tolerated.
"....
"Any member of management who receives a report of sexual harassment must thoroughly investigate the complaint with maximum effort to maintain confidentiality and individual privacy. No retaliation will be administered against any associate who reports a claim of sexual harassment. Following the investigation of the complaint, if the complaint is determined to be valid, the offender will face immediate and appropriate disciplinary action based upon the severity of the harassment and other relevant factors. Disciplinary action may include termination."
(Emphasis added.) Usrey should have been well aware of the consequences of his actions and comments. But perhaps that awareness of the seriousness of the allegation is why he originally denied that the incident ever took place.
Wal-Mart had to act swiftly and effectively to avoid liability for sexual harassment.
"Sexual harassment which creates a hostile or offensive environment for members of one sex is every bit the arbitrary barrier to sexual equality at the workplace that racial harassment is to racial equality. Surely, a requirement that a man or woman run a gauntlet of sexual abuse in return for the privilege of being allowed to work and make a living can be as demeaning and disconcerting as the harshest of racial epithets."
Henson v. City of Dundee, 682 F.2d 897, 902 (11th Cir. 1982), (quoted in Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, at 67 (1986)). Meritor accepted the argument that to some extent an employer's liability should be based upon principles of agency. In that case, the EEOC
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