Don't mess with the boss's son.
By Howard Muson in Family Business Magazine
Savonda Thomas suspects her husband, Steve, is having an affair with one of his employees, a flag person in the family construction company. One night Steve tells his wife he's going to the hospital with Terry Garland, another member of his crew, to visit an injured coworker. Savonda finds out that the flag woman, Jeri Platner, has also been with them. Steve does not return until 11 p.m. When he does, the couple argues.
The next day Savonda's suspicions are confirmed: She finds a shirt of Steve's in the laundry with a smear of makeup on the collar--not hers. With another crewman's wife who shares her dislike of Platner, she drives out to the work site and shows the shirt to Steve. "Whose makeup is this?" she demands. "I don't know," he says. She then tracks down Jeri Platner, who is hooking up a chain to a piece of pipe the men are lowering into a ditch when Savonda, brandishing a beer can and the makeup-stained shirt, catches up with her. Jeri denies the makeup on the shirt is hers. Savonda then lets her have it in front of the other crew members for not telling her about going to the hospital with Steve.
This confrontation in 1987 brought simmering emotions to a boil in a small construction company with about 50 employees, owned by Steve's father, Jack Thomas. Cash & Thomas Contractors is based in Toccoa, Georgia, but the dispute took place near the company's Augusta branch office, about 100 miles to the south, where Steve Thomas was the supervisor of crews engaged in laying sewer and water pipelines for local municipalities.
The 62-year-old father frequently visited the Augusta office and knew about Savonda's suspicions, her jealousy, her fights with Steve over Platner. He was aware that other employees were talking about the two women and his son--rumors and gossip were rife in the company. He also knew that as a result of the brouhaha, Savonda had threatened to leave Steve and take their daughter--Jack's granddaughter--with her.
Although Savonda had never asked him to fire Jeri, Jack finally decided that she had to go. He called her into the office and, as Jeri remembers it, said: "Jeri, this is the hardest thing I've ever had to do. I'm going to have to let you go, or you have to quit. I'm having trouble with Savonda. She is going to take the baby and leave Steve if I don't fire you."
The tangled plot ended up in the Federal courts. Platner, a married woman with two children, charged that, in firing her but not his son, Jack Thomas had violated Title VII of the Civil Rights Act of 1964, which prohibits unequal treatment of employees based on race, color, religion, sex, or national origin. But Platner v. Cash & Thomas Contractors was also a major test of nepotism in the employment practices of family businesses. After a one-day trial in U.S. District Court in Augusta, Judge Dudley H. Bowen Jr.'s decision was appealed to the U.S. Court of Appeals for the 11th Circuit, which ruled on the case last August in what could be a precedent-setting opinion.
Beyond the legal arguments, the case was almost a textbook example of how not to deal with feuds and emotional entanglements that can develop in the workplace. These entanglements often occur when family members and employees not only work together but socialize a lot and become familiar with one another's private lives. Unless the business owner is willing to confront and deal with them, emotions can spin out of control and lead to antagonism and costly lawsuits. As Judge Bowen said in his decisions "There are few things more likely to produce discord in the workplace than the rumor, suspicion, gossip, and innuendo that were rampant in this small, closely held pipeline contracting operation."
Steve and Savonda had been married in 1986 when she was five months pregnant. The couple lived in an apartment behind the office in Augusta; Steve's two children from a previous marriage sometimes stayed with them. The concrete-block building housed two apartments, one for crewmembers sent down from Toccoa. There was also a kind of recreation room where crew members relaxed after their shift and frequently drank beer.
When Jeri Platner was hired by Cash & Thomas in January1987, Savonda was at her former home in Toccoa where she was staying until she had her baby. After returning to Augusta, Savonda soon grew suspicious of the new employee. She found out from the office secretary, Ruby Purcell, that Platner had been asking about her--what did Savonda look like, did she have a nice body, did she break up Steve's first marriage?
Platner was one of two flag women in the branch office, but she was the only female who drank beer with Steve and the other men after work. She usually socialized in the crew room until her husband picked her up at 5:30 p.m. Ronnie Platner apparently didn't like his wife to drink with the men and, for that reason, according to court testimony, was referred to behind his back as "dildo head."
Savonda, who worked part-time in the office, felt the shorts and sleeveless T-shirts that Jeri wore on the job were a little too revealing, She also noticed small gestures of Jeri’s, directed at Steve, that she felt were sexually provocative. One day Jeri sat down next to Steve and leaned against him while reaching across to get a light for her cigarette from another worker. When the crew went to work with Steve driving the truck, Jeri always got into the front seat next to him, with two men on the outside.
Was Savonda imagining Jeri's play for Steve? Was Jeri purposely flaunting her hold on Steve in front of her?
The wife's suspicions erupted into argument after the hospital visit by Steve, Jeri, and the other crew member, Terry Garland. Savonda was furious when she discovered that Jeri was one of the three people she saw go off in the truck. Jeri later testified that she had gone out of her way to drive from home to the office to join the two because the visit might be awkward--the hospitalized coworker had lost a hand in an on-the-job accident-- and they wanted to go together. Savonda was more alarmed when she found out that visiting hours at the hospital ended at 8 p.m. What had Steve and Jeri been doing between8:00 and 11:00 that evening?
Terry Garland testified that they had actually arrived at the hospital after 8:00 but had been allowed to stay. What happened on the way back to the office remains unclear, The three evidently bought some beer. Savonda says that, when pressed, Steve admitted they “may have smoked a joint" (Jeri denied it). Whatever the truth, Steve and Savonda argued into the early morning hours. Savonda felt that the fact that Steve and Jeri had not informed her they were going to the hospital together showed "lack of respect. She threatened to leave Steve. Angry at her suspicions, he threw her on a bed.
Then came the discovery of the makeup-stained shirt and the confrontation between Savonda and Jeri by the ditch. When Steve heard about the incident, he was irate and demanded that she apologize to Jeri, which she did--grudgingly--the next day in the office. Steve and another employee were there when Savonda told Jeri she was sorry for making a scene in front of other crew members. But she added that she had meant every word of it.
As Steve bent over to tie his shoes, Savonda announced to Jeri: "I've had enough... if you want him, he's yours.” Jeri recalls that her reaction was to tell Savonda that she loved her own husband. As to the suggestion that there was something between her and Steve, she remembers saying: “I don't know what gave you that impression."
By this time, evidently, the crewmembers were all aware of Savonda's suspicions and jealousy. Ruby Purcell testified that some of them thought Jeri’s behavior was funny and were talking about what would happen next between her and Savonda.
The final incident—or non-incident, depending on whom you believe—occurred at some boat races that took place on a weekend at the Augusta riverfront. Before leaving the office on Friday afternoon, Jeri had stuck her head back in the crew room and announced she would be at the riverfront watching the races that weekend, "wearing a bikini and without her husband. “That was how Savonda, who was in the room, remembered Jeri's words, which she felt were meant for Steve alone. Jeri's version was that she was telling the other crew members that she would be there because they had all talked about going.
Jeri said she came to the riverfront, wearing a two-piece bathing suit under shorts, with her daughter and a friend. Savonda, who came with Steve wearing a bikini herself, said they observed Jeri in a bikini, socializing with "about eight guys, none of them her husband." At one point, when Jeri passed near them, Savonda said to Steve, “there goes your buddy." That touched off another quarrel, which hours later ended up with Steve throwing her on the bed again. News of their argument quickly reached Ruby Purcell, who was a kind of second mother to Savonda and had apparently been getting a play-by-play of her marital troubles. Ruby was also described in testimony as having a "special relationship" with Jack Thomas, though the nature of that relationship was not described. The business owner had seen Jeri drinking beer with the men. He was aware of Savonda's suspicions. After the riverfront incident, Jack found out from Ruby that Steve had "roughed up Savonda" again, and she was threatening to take their baby and leave him.
The decision to fire Jeri was not easy. During her six months with the company, she had made only one small mistake, although a costly one: She had poured the wrong type of gasoline into one of Jack’s trucks, after which, he said, "it didn't work a lick."
But generally she was considered a good worker. When Jack told her in June 1987 that she had to be dismissed, she suggested that he solve the problem by assigning her to another crew so she wouldn’t be working with Steve. The next day she showed up for work with her husband and told Jack she was "ready to go to work on the other crew." Jack replied that he was sorry, he couldn't let her do that. Jeri then complained to the state Human Relations Commission, which investigates charges of discrimination against employers. The commission concluded the firing was not a Title VII violation. Jeri and her lawyer John Paul Batson thought it was and sued the Thomases and the company.
The trial featured grown men, surrounded by the awesome trappings of the law, arguing at great length about women’s lingerie. Savonda testified that Jeri's T-shirts had not gone unnoticed by Steve. He had once asked her to buy a bra just like Jeri's, she said. How did he know what it looked like? She says Steve confessed, "Gosh, Savonda, I couldn't help but see it. I have to walk with her or behind her."
Batson argued that Jeri had not been given any dress code by her employers and that her clothing was not provocative. More important, he noted that she had not been warned about her job performance, which the Thomases admitted had been satisfactory, or about the compromising position the alleged affair between her and Steve had put her in. In fact, he argued to the court, there was no affair at all. Jeri was fired simply because she was a woman.
Jack Thomas's attorney, Jack L. Cooper, argued that Jeri was not fired because she was female, but because of her behavior. If Jack had discovered that a male employee had been making sexual advances, the father would have done the same thing--that is, fired the man.
Generally, the Federal courts have upheld favoritism for relatives in hiring and firing unless such a systematic policy consistently blocks the progress of women and minority employees in the company (see "Nepotism and the Law," below).
In ruling for the defense last year, Judge Bowen decided that Jack Thomas had a legitimate, nondiscriminatory motive for firing Jeri. Bowen repeatedly spoke of the father's desire to "protect" his son, whether it was from an adventurous woman, from an unduly jealous wife, or from himself. Faced with a "sea of discord" that was interfering with his business, Thomas had chosen to "cast out the offending part"--Jeri. He had acted to quiet his daughter-in-law and to defend the family unit for the sake of his grandchild; to have fired his son as well would have risked a family breakup.
Unlike many states that have wrongful-discharge statutes requiring employers to show "just cause" for dismissals, Georgia law places few limits on an employer's right to fire. Jeri did argue, however, that Savonda had brought about Jeri’s dismissal and thus violated her contract rights understate law. But Bowen rejected that argument too. "I am absolutely confident," he said, "that Jeri's dismissal met with the utmost approval, and perhaps even delight, of Savonda Thomas. But I do not see evidence for a finding that the dismissal of Jeri Platner was obtained by the willful, malicious interference with Ms. Platner's job by Savonda Thomas."
Last August, the U.S. Court of Appeals affirmed Bowen's decision. The ultimate basis for Platner's dismissal was not gender but simply favoritism for a close relative, the higher court agreed. "However unseemly and regrettable nepotism may be as a basis for employment decisions in most contexts," the opinion declared, "it is clear that nepotism as such does not constitute discrimination under Title VII"
In upholding Bowen, the higher court praised the district judge for a balanced, thoughtful opinion delivered orally from the bench. Bowen had wisely refrained from reaching any conclusion about whether there was or wasn't an affair between Steve and Jeri. Both courts, however, described Savonda as "unduly jealous," and the appeals court spoke of her "fevered imagination." Perhaps somewhat naively, Judge Bowen ventured that, given the comings and goings of family members and crews at the Augusta office, it would have been "exceedingly difficult" for Steve and Jeri to "consummate" an affair.
The judge also made a few other observations about the living arrangements that other small companies would do well to heed. When family members live and work with other employees on the same business premises, they have to develop guidelines, build some fences, and use a minimum of good judgment if they want to protect their privacy and family lives. The judge added that “the amount of socializing, beer drinking, and fraternization that occurred so close to the office and workplace certainly seems to have had its derogatory effect in this case."
There was plenty of blame to go around, and Judge Bowen doled it out in generous portions. Savonda appeared to the judge to be "unduly jealous." Jeri was surely aware of Savonda's suspicions after the confrontation at the ditch but did nothing to reassure her; on the contrary, Jeri seemed to persist in what Bowen described as her "body language."
But the two people who could have stopped the bickering before it got out of hand, Bowen said, were "the stars of this show"--Steve and Jack Thomas. Steve, as Jeri's supervisor, did not warn her of his wife's jealousy. Indeed, he may have added to her suspicions by defending Jeri in arguments with Savonda, becoming abusive, and forcing her to apologize. Bowen acknowledged that Jack Thomas had done what he thought was necessary to protect his family and his business. But the judge also gently admonished him, for waiting three weeks before taking action and not considering any alternatives to the firing of Jeri.
"For reasons of his own," Bowen said, "Mr. Jack Thomas saw only one clear path for his solution to this discord, and that was by dismissing Platner. He did not consider counseling his son. He did not consider meeting with his son and daughter-in-law, and Jeri Platner and her husband. He did not consider any warnings, any guidance, or any preventive measures that might be incorporated under the head of leadership."
Unfortunately, if Jack Thomas fired Jeri for the sake of preserving family unity, he did not succeed. The quarrel over Jeri led to a divorce between Steve and Savonda, which became final in the same month as Judge Bowen's 1989 decision. Since the trial, Jeri Platner has also been divorced from her husband. She worked as a bartender and waitress for a while but in late fall last year was unemployed.
Cash & Thomas has closed its Augusta office. The company now specializes in digging water wells and installing pumps, and is down to five employees. Mark Thomas, 29, Steve's younger brother, says their father recently had stroke and is no longer active in the business, which is now run by him and Steve. Savonda has custody of Jack’s granddaughter, according to the Thomas' lawyer, Jack Cooper, but remains on good terms with her father-in-law.
However trivial the circumstances of the case, it has surely taken its toll on both the family and the business. Just talking about the problems soon enough might have spared the Thomases much expense and grief, and allowed Jeri Platner to keep her job. Small companies such as Cash & Thomas can ill afford the time and resources that are usually necessary to defend such lawsuits. The Thomases came out on top in this lawsuit, but they are hardly big winners.
Cash & Thomas
BUSINESS: Contractors for water-well digging and pump installation (at the time of the case they specialized inlaying sewer and water lines).
FOUNDED:1951 in Toccoa, Georgia. Jack Thomas bought out his partner in the late sixties.
STOCK: All owned by Jack Thomas.
CURRENT CEO: Mark Thomas, 29, the Thomases' younger son.
OTHER FAMILY MEMBERS: Steven, 34, vice president; mother Barbara Thomas works part-time in office.
NUMBER OF EMPLOYEES: 28 in 1987, now five.
Key players in the case
JERI PLATNER: The plaintiff, who was employed as a flag person from January to June 1987 in the Augusta branch office of Cash & Thomas Con-tractors Inc. (Now divorced, she uses her original name, Jeri Bryant.)
JACK THOMAS: Owner of Cash & Thomas and a defendant in the lawsuit. He was CEO at the time he fired Platner in 1987.
STEVEN THOMAS: Jack's older son, who was also a defendant. He was supervisor of crews in the Augusta branch office and Platner's boss.
SAVONDA THOMAS: Steve's second wife, who thought Platner was making a play for him.
RUBY PURCELL: Secretary in the Augusta branch office, a confidante of Savonda. Also described in court as having a "special relationship" with Jack Thomas, though the nature of that relationship was never defined.
TERRY GARLAND: A crew member and key witness. He was with Steve and Jeri on a disputed evening visit to a friend in the hospital that inflamed Savonda's jealousy.
JUDGE DUDLEY H. BOWEN JR.: The U.S. district judge in Augusta who delivered a verdict from the bench favoring the Thomases after a one-day trial in August 1989.
JOHN PAUL BATSON: Jeri Platner's attorney.
JACK COOPER: The Thomases' attorney.
NEPOTISM AND THE LAW
Jeri Platner's claim of sex discrimination under Federal law was denied because her lawyer had not been able to prove that Jack Thomas acted with a discriminatory motive in firing her. You can, however, violate Federal civil rights law even if you don’t intentionally discriminate-particularly if you have a large business with lots of relatives in it. In 1982, a Federal appeals court in California ruled that an Oakland garbage company was guilty of discrimination because some 120 worker-shareholders of Italian ancestry, all of whom were related, received higher pay and more opportunities for promotion than minority-group members who did virtually the same work. The case was settled last year with an award of $8 million to 16 black and Hispanic plaintiffs (See "You Can't Always Pay What You Want," FB, February 1990).
The law considers nepotism a neutral policy--that is, it's not discriminatory by itself. Such a policy is lawful unless it has an "adverse impact" on women or minority groups (as in the Oakland Scavenger Co. case). In another case two years ago, the Supreme Court increased the burden of proving adverse impact to plaintiffs and, at the same time, made it easier for employers to defend such lawsuits. Many lawyers, however, expect the new Congress will eventually enact a civil rights bill—with or without President Bush’s signature—that will require employers to provide a strong business justification for a policy that results in racial or gender imbalance.
Nepotism is more vulnerable to attack for "disparate impact" by racial minorities than by women. As the U.S. Court of Appeals noted in Platner v. Cash & Thomas: “it is difficult to see how nepotism could mask systematic gender discrimination. While a person's relatives will usually be of the same race, men and women will presumably be equally represented both within and without the family."
The smallest companies--those with 15or fewer employees--are specifically excluded from the provisions of the Civil Rights Law of 1964 dealing with employment discrimination. But many states have similar statutes with broader coverage.
Paul W. Cane Jr., a labor law specialist with the Los Angeles firm of Paul, Hastings, Janofsky & Walker, offers several suggestions for family-owned companies that want to protect themselves against charges of discrimination:
- Find out as much as you can about the racial and gender composition of the labor pool in your area and try to bring your own Shop into line with it. Often you can get an idea of the available work force from your own pool of job applicants.
- The argument that most hiring in your business is through industry connections or word-of-mouth is a weak defense, since these traditional sources often perpetuate an in-group.
- Avoid stereotyping in both job assignments and business communications, jokes or epithets aimed at women or minority-group members will be taken in court as evidence of a "hostile environment" for these groups.
- In hiring or promoting a family member, explain the decision in job- related terms. If a disappointed applicant asks why he or she was passed over, you shouldn’t say, "We want Bill for this position because he's family." Emphasize Bill's qualifications for the job, his commitment to the long-term success of the company, and your first-hand knowledge of his skills.
- Never, never make or explain a hiring decision or promotion by reasoning that "our customers won't like it if we send them a black salesman or a woman." Customer preference is not a defense in a lawsuit based on a discrimination claim. ▪
Howard Muson is a writer, editor and consultant, and former editor and co-publisher of Family Business Magazine.
Source: Family Business Magazine, January – February 1992
Copyright © 1992. Family Business magazine. Subject to the provisions of the Terms and Conditions of the Family Business Web Site, subscribers to Family Business magazine may print and distribute copies of this article, electronically or otherwise, provided that (a) such printing and distribution is done only for your personal, informational, non-commercial purposes, and (b) you do not remove or obscure the copyright notice or other notices. For other uses, including reprint permission for non-subscribers, contact Family Business magazine.