While on final warning based on misconduct, Crockett was suspended pending investigation of alleged misuse of a cell phone on duty. She did not tell Mission about an alleged incident of sexual harassment by her supervisor. After she was reinstated, Crockett field a complaint with the equal Opportunity employment Commission and eventually told Mission about the alleged incident and that she recorded conversations to gather information in support of her claim. Because some of the conversations were with patients, she was fired. She sued under 42 USC 2000e (Title VII). The district court granted summary judgment to Mission. The panel, with one judge separately concurring, affirmed. It held the suspension was not a tangible employment action as her supervisor did not initiate the suspension and Crocket was under final warning. Additionally, Mission proved its affirmative defense of having a sexual harassment policy made available to Crockett because it actually had a sexual harassment policy and attempted to allow Crockett to use it. Crockett, however, withheld information about the alleged incident and thus refused to utilize it. Thus, judgment for Mission was appropriate. The concurring judge argued that the alleged harassment was nto sever enough to state a claim and would have affirmed on that ground.
Fifer, who repaired shipping containers, was injured on the job. Marine terminated temporary benefits arguing Fifer could return to work at other jobs. The administrative law judge ruled that Fifer permanently disabled as he could return to work at Marine, could not operate a fork lift due to his need to take breaks, pass drug screenings due to his pain medicines and the restaurant positions identified by Marine’s expert lacked any description of the detailed physical duties required. The benefits board affirmed. The panel vacated and remanded. It held that the administrative law judge erred when she concluded Fifer was disabled because she cited no evidence in the record which supported this finding. Additionally, the judge erred in requiring Marine to take into account the unsupported findings about disability into account in their labor studies. Thus, the award had to be vacated and the case remanded. (This opinion was originally unpublished and was published today on motion of Marine)