That's What She Said

Dueling Complaints

LITIGATION VALUE:  $50,000 (in litigation costs on Darryl’s claims); damages continuing to pile up on Oscar’s claims.

In tonight’s episode, “The Meeting,” we watched as Michael interfered with Jim’s attempt to obtain a promotion and falsified documents in Jim’s personnel file (clearly a problem, but not the most interesting problem in this episode). We also watched as Toby and Dwight conducted a stakeout of Darryl’s house to investigate the workers’ compensation claim Darryl filed after he “fell off a ladder” in the warehouse.

This is “The Office,” so we knew the stakeout was a bad idea the moment Dwight suggested it, and Dwight and Toby did not disappoint. The stakeout resulted in Toby and Dwight making vulgar and inappropriate statements about Darryl’s sister. Later, we learned that Darryl lied in his workers’ compensation forms about how he was injured. Dwight threatened to file a complaint with corporate about Darryl’s falsified workers’ compensation forms. Darryl, in turn, threatened to file a sexual harassment complaint with corporate on behalf of his sister. Both men filed complaints, and Toby gets to do a lot of paperwork.

These Scranton branch employees first went wrong when Dwight and Toby decided to engage in the stakeout. Workers’ compensation is governed by state laws, so what employers can lawfully do to investigate whether an employee is injured will depend on the state laws where the work site is located. While generally an employer may investigate whether an employee is injured, it is not a good idea for the employer or coworkers to conduct the surveillance themselves. This episode shows why.

From the stakeout, a sexual harassment complaint developed. While it is clear that Toby and Dwight should not have made the comments to and about Darryl’s sister, these statements likely do not constitute actionable sexual harassment under Title VII or a comparable state statute. Darryl’s sister is not a Dunder Mifflin employee, and these comments likely were not sufficiently severe to constitute sexual harassment.

Dwight was correct that Dunder Mifflin had the ability to take action against Darryl for lying about how he was injured. The company also could discipline Darryl for the misuse of company property that led to the injury. If the company were going to discipline Darryl, however, it would need to be careful how it did so to avoid giving him a potential workers’ compensation retaliation claim or a Title VII retaliation claim based on his opposition to the alleged sexual harassment of his sister. Dwight – don’t make a poor sexual harassment complaint into a great retaliation claim!

Employers that follow the path taken by Toby and Dwight in this episode will, best-case scenario, face the same mound of paperwork Toby encountered at the end of this episode. Likely, such an employer would prevail on a claim filed by a “Darryl,” but it would spend a significant amount of money on legal fees to get there. Instead, employers should train their “Tobys” to instructs their “Dwights” to go back to their desks when they suggest a stakeout.

The next episode should be a fun one as we watch Dwight react to Jim’s promotion!

NOTE: A couple of people have asked about Michael’s comment to Oscar regarding the Colonoscopy. You can blame the lack of any comment on that discussion in this blog as my VCR (yes, I still use a VCR) disagreeing with NBC on when the show started! I just watched that conversation on and here’s my take. Clearly that’s serious sexual orientation discrimination. Federal law (Title VII) does not prohibit discrimination based on sexual orientation, but several states make it illegal. Michael’s comments are also sexual harassment. Combine these unbelievable comments with Michael’s comments from other episodes and Oscar has a great claim. Oscar should have filed a complaint with Corporate and added to Toby’s paperwork. Last time Michael was that out of line with Oscar, Dunder Mifflin gave Oscar a large check, time off and a Company car.