Robert Barry has a heavy burden to prove, and a colossal opponent to prove it against: Publix Supermarkets. He makes $10 an hour. Publix makes $200,000 an hour just in profits. The giant grocer can stock whole aisles with lawyers.
But Barry has gotten this far: the wrongful termination lawsuit he filed against the Lakeland-based company in May 2011 went to trial today before Circuit Judge Michael Orfinger at the Flagler County Courthouse as a jury of five women and two men, including the alternate, was seated by early afternoon. The trial is expected to take all week and crack a few windows into the giant grocer’s employment practices and work culture.
Publix fired the 30-year-old Palm Coast resident five years ago after he’d spent six years working between the stores at the old Palm Harbor shopping center and the Town Center Publix, which he helped open. His mother still works at Publix. So does his brother. Barry sued Publix less than a year after his firing from the Town Center store, claiming Publix retaliated against him for reporting a case of sexual harassment—not involving him, but Michelle Ashton Brown, a Publix employee he considered to be his best friend at the time.
Barry claims Brown was being harassed by Craig Dario, a supervisor and a friend of Barry’s: the two had gone Christmas shopping together. Dario had repaired Barry’s car. They’d hung out, to the extent that Barry’s probation allowed him to (he was on probation as part of a deferred prosecution agreement over a marijuana possession charge, but only until May 2005). Barry claims Dario’s harassment of Brown was “frequent,” that Dario would make vulgar sexual comments about her to him “about 50 times a week.” He suggested to Brown to have her boyfriend confront him—which she did, and the subsequent altercation between the two men, which may be introduced as evidence, was caught on surveillance video.
“What were the comments?” Frederick Morello, Barry’s attorney, asked Barry, who took the stand after his mother did this afternoon.
A claim of sexual harassment denied by the woman allegedly being harassed.
“He had a problem acting like a horny teenager,” Barry said of Dario. “He talked about her butt a lot, how he wanted some blow job from her, his favorite sexual positions, all sorts of things like that.”
Except that Brown denies it.
She will testify for Publix, saying ina signed statement she was never harassed, a trump card Publix attorney William Reese at one point brandished and made much of this afternoon, returning to it again and again in his open arguments like a taunt as he stood a few feet from a motionless Barry.
Publix is arguing that Barry concocted the whole story with a colleague, Henry Torro—also subsequently fired—as the two men wanted to get rid of Dario, who’d become too much of a taskmaster. Barry, Publix asserts, was fired for being dishonest, and allegedly lying on his job application six years earlier by not revealing that he was on probation (a thin claim Barry’s attorney thinned further by documenting to what extent the company knew of his legal status).
“It’s going to be Torro and Barry against six or seven people who worked at that store, who worked with them and worked with Ashton Brown,” Reese said. “Unfortunately for Mr. Barry, his story—he was caught, it was found not to be true, he couldn’t prove his case.”
But as Morello put it, “This is an example of Publix’s open door policy that turned into a trap door. This is a case where an employee used the employer’s open-door policy to protect another employee and went to corporate. But that turned out to be a trap door, where they fired Mr. Barry to protect the store manager and the supervisor, Craig Dario.”
The store manager, Caryn Pryor, still the manager at the Town Center store and previously the manager at the Palm Harbor store, was the only Publix employee to sit alongside Reese and co-counsel Shannon Kelly. (Other than a reporter, only one other individual was in the audience, a youngish man who during a break inexplicably attempted to prevent the reporter from getting Reese’s name, though Reese was happy to furnish it.)
Publix doesn’t need to prove anything: it doesn’t have to explain why Barry would risk a six-year career through a made-up story, or why its background checks didn’t pick up on Barry’s criminal history, or why it also fired Torro. The burden of proof is entirely on Barry. He must prove not only that actual harassment took place (beyond his mere claims), but that the nature of the harassment was severe, and that it changed the working environment for Brown. In other words, that “a reasonable person, not someone who is overly sensitive,” as Orfinger described it, would have found that the offensive acts materially changed Brown’s employment conditions.
The frequency and severity of the alleged harassment must be taken into account: a few vulgarities and advances here and there don’t create a hostile work environment—at least not in the framework of this civil action. “Conduct that amounts only to ordinary socializing in the workplace, does not create a hostile work environment,” Orfinger told the jury in his opening instructions, which both sides agreed to. “A hostile work environment will not result from occasional horseplay, sexual flirtation, offhand comments, simple teasing, sporadic use of offensive language, or occasional jokes related to sex. But discriminatory intimidation, ridicule, insults or other verbal or physical conduct may be so extreme that it materially alters the terms and conditions of employment.”
Though jurors are told to rely only on evidence, lawyers are well aware that jurists take a number of cues from factors that have nothing to do with the evidence: the look and demeanor of the plaintiff and defendant (Pryor in this case was brought in likely to put a more human and recognizable face on the colossus, which could not very well present just two overly self-assured lawyers to the jury), the confidence of the attorneys (Morello stumbled several times, not least when Orfinger had to ask him to stop his computer’s screen saver from sequencing through the courtroom’s overhead monitors: “amusing but distracting,” Orfinger called it), whether they relate to witnesses or not.
Barry did not help his case when, at his own attorney’s prompting, he revealed that he’d been written up at least a dozen times in his tenure with Publix—for his tardiness, but also, on at least two occasions, for a volatile temper: “One time I lost my temper and was written up for that,” he said, without elaborating. “I also accidentally damaged a time clock in the bathroom, I was written up for that.” He did elaborate on that. He’d been frustrated with a mess in a section of the store. He kicked an empty 5-gallon bottle of water. “It went flying down the hallway, it just happened to hit the time clock. It unfortunately damaged it,” he said.
His testimony stopped at 4:40 p.m., the time Orfinger had promised the jury to end all daily proceedings. He was to be back on the stand Wednesday morning.