Yes, most of us know that threatening to strangle someone, let alone actually doing it is wrong. It’s asking for trouble. It should not be tolerated in any setting, including the workplace. So, why even write about it? Because, unfortunately, it happens. When it does it’s often the stuff that makes up a lawsuit. An employer who doesn’t take threats of violence or allegations of such threats, or worse, acts of violence, seriously cannot be surprised when someone, G-d forbid, gets hurt, or when it finds itself facing a civil lawsuit or possibly even criminal charges. In fact, there is now just such a case in the news. Let’s take a look… The case is David Maltese v NY Football Giants. You’ve probably heard something about it–particularly if you follow football. In a nutshell, here is what allegedly went down:
David Maltese worked as a Video Director for the NY Giants for 30 years. He allegedly witnessed his immediate supervisor, Tyseer Saim, Director of Football Data and Innovation, assault Maltese’s direct report, Stephen Venditti, on September 12, 2020. Maltese himself had also been previously subjected to “threatening” behavior by Saim. He reported the alleged assault on Venditti to William Heller, Senior VP, and General Counsel to the Giants, reminding them that he too had previously been the target of Saim’s violence and that John Mancuso, the Giants’ former video director, had assaulted him. In his complaint to upper management, Maltese expressed concern about a “continuing pattern” and “culture of violence” by management toward subordinates. Maltese also claims he had reported an incident from 2004 when former assistant coach Dave DeGuglielmo, “ragefully attacked” him, “driving him into a table”, yelling “I’m going to kill you”, in front of Chris Mara, Senior VP of Player Personnel, who did nothing.
In his call with William Heller on September 30, 2020, Maltese claims that Heller told him that if he revealed what was said in their meeting to anyone “not a part of” them that “I will personally go into your office and strangle you until you can no longer breathe, ok? OK?”. Maltese claims that Heller was “well aware” that Maltese had a history of trauma from violence directed at him by Giants managers and executives. The Giants terminated Maltese’s employment effective March 15, 2021.
Maltese sued under New Jersey Conscientious Employee Protection Act (CEPA), alleging that he was fired in retaliation for complaining about and objecting to the alleged violence. The Giants’ counsel has now filed a motion to dismiss Maltese’s claim, arguing that his allegations are “misleading”, that “Plaintiff’sallegations are nothing more than complaints about private concerns and complaints that he had about his treatment at work” and that “They do not rise to the level of a ‘threat of public harm’ sufficient to state a claim.” Admittedly these are not all the allegations — on either side. Both sides have said much more, but we do have enough to show that: a) Maltese’s allegations if true, are enough to allege a CEPA claim, and b) a court will likely find a dispute as to material issues of fact. That means that the case probably won’t be dismissed. Courts are generally hesitant to do so, particularly before discovery has been completed.
The Giants’ management also alleges that Maltese also knew as of January 20 that his job was in jeopardy and therefore his firing was not and could not have been in retaliation for reporting concerns about violence. Even if true, those facts do not preclude a retaliatory firing. Perhaps there were issues with Maltese as of January 2020 or earlier. The facts, however, do suggest he had complained about violence prior to 2020. Moreover, even without prior reports, retaliation could still have ultimately been the motive for his termination. Management might have been thinking of terminating him before, but his most recent complaints about violence by Saim could still have been the deciding factor or a significant factor, in his termination a few months later. As you can see, these facts make for a messy case. If it goes to trial, the jury will have to sort through a lot of allegations that seem to conflict. All we can do it stay tuned…
OK, that’s all well and good, but let’s get down to what the rest of us can take from this case. The NJ Giants management does not seem to be disputing that in fact there was a history of violent behavior by different management members. While some facts suggest some actions being taken in response to some incidents, it appears that what actions were taken were either ineffective, or too little, or both. Your organization does not have to go the way of the NY Giants. You can avoid the necessity of defending a messy lawsuit. (Frankly, the NY Giants could have also done so, but that’s a different discussion). How do you avoid such results? Here are some places to start:
- Take all complaints of bullying, violence, and harassment seriously and promptly investigate;
- If the complaint appears to be substantiated, take prompt remedial action, by disciplining the perpetrator(s). You can do progressive discipline. If you do, and the behavior recurs, be ready to terminate the perpetrator(s);
- Document all complaints and your response to each and every one, along with your conclusions and your reasons for all actions you take in response;
- Review and update all relevant policies and procedures, making sure that anyone responsible for implementing them receives training;
- Make sure you have a complaint procedure, that your employees know about it and how to use it, and make sure that any employee using the complaint procedure does not experience retaliation;
- If you do learn of retaliation, make sure to promptly and appropriately discipline for that as well.
- Check with your friendly employment counsel when any questions arise.
That should be enough to get started, so we’ll stop here for now.
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