Dueling Complaints

September 25, 2009 - by: Jody Ward-Rannow 7 COMMENTS

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 NBC.com 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.

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1 Brianna
10:39:42, 25/09/09

I’m shocked that the opening scene with Michael and Oscar didn’t get a mention! My response to that scene: “I’m such an HR dork. I can’t wait to read what ‘That’s What She Said’ will write about that!”

2 Ben PIcker
11:02:33, 25/09/09

Don’t forget about the opening scene when Michael asks for Oscar for advice regarding his upcoming colinoscopy simply becuase Oscar is homosexual.

3 Jody Ward-Rannow
14:56:51, 26/09/09

My VCR missed the opening scene! I updated the Blog post after watching it on NBC.com. I think Oscar’s getting a new car or taking another three month vacation like the Company gave Oscar when Michael kissed him.

4 Greg Freeman
17:06:01, 28/09/09

The documents in Jim’s personnel file were not faked. In an earlier season Toby had a crush on Pam and made the entries as he observed Jim hanging out at the front desk all the time.

5 Joe
19:08:53, 28/09/09

What about Michael’s actions against Jim? You explained the Dwight vs. Daryl story pretty well, but could Michael get away with what he did to Jim? Michael is just a menace!

6 Patrick
15:04:13, 29/09/09

What bothered me about this episode is that they made Michaels character to be a huge jerk. He had always been annoying, but still funny and likeable in a strange way and had never done anything to deliberately mess up Jim or anyones career like that (at least in the episodes I saw). Kind of ruined the character for me.

Anyway I know I’m a bit off topic, but just wondering if anybody else thought the same?

7 Jody Ward-Rannow
02:02:42, 01/10/09

Greg: Now that you mention Toby writing a poor review for Jim, I recall an episode like that. I don’t remember exactly what Toby wrote in the review. Michael seemed like he was up to something in this episode.

Joe: Unfortunately for Jim, it is not illegal to be mean. Unless Michael actually forged the document (which my memory could be faulty on) Jim’s out of luck unless he can find a way to show that Michael was discriminating against him based on some protected class. Jim’s a white male and probably out of luck on a discrimination claim, at least with regard to Michael. Jim likely has a defamation claim, but he would have to prove that Michael’s statements were false and not opinions. Jim’s probably better off waiting for Pam to cash in when Michael inevitably says or does something really inappropriate to Pam based on her pregnancy. I kind of can’t wait to see what they are going to do!

Patrick: I agree with you about the change in Michael this week. Honestly, the only moment that saved Michael for me was when Wallace asked Michael if he wanted to lose Jim. Based on the fact that Jim got the promotion, Michael must have said he couldn’t lose Jim (even though we don’t see Michael’s answer). I hope they make Michael do something ridiculous and funny this week instead of mean spirited so I can go back to liking him again.

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