Tag Archives: retaliation

Lack of Documentation Sinks Employer’s Defense to Retaliation Claim

Contributed by Jonathon Hoag

Timing may not be everything when it comes to employment retaliation claims, but it is a critical factor.  An employee who can show adverse employment action taken on the heels of engaging in some type of protected activity (e.g. complaining to the EEOC) is in prime position to assert the employer unlawfully retaliated.  A fundamental step to proving retaliation is to show the employer was aware of the protected activity at the time of the adverse employment decision.  Naturally, an employer that is unaware of protected activity cannot retaliate against an employer for engaging in protected activity.

In a recent 7th Circuit retaliation case, the employer asserted it could not have retaliated against the employee for filing a charge with the EEOC because it made the decision to terminate the employee prior to getting notice of the EEOC charge of discrimination.  The district court agreed and granted summary judgment in favor of the employer and dismissed the lawsuit.  The 7th Circuit disagreed and revived the employee’s claims – primarily because the employer did not have any documentation to show the decision was made to terminate the employee prior to learning about the EEOC charge.

The employee worked within a housing shelter and had been warned on numerous occasions about mistreating and threatening residents.  The employer asserted that after it issued yet another warning to the employee, the employee accused coworkers and members of the board of lying to try to get him fired.  The employer further asserted that the executive director and the board president met and decided to terminate the employee – 5 days before learning of the EEOC charge.  However, the employer did not actually carry out the termination until the day after it received the EEOC charge.

The 7th Circuit pointed out the obvious – terminating the employee the day after it learned he filed an EEOC charge was suspicious timing.  There were other factors that prompted the 7th Circuit to revive this case and give the employee his day in court, but the factor the 7th Circuit stressed most was that there was no documentation of the meeting in which it was decided to terminate the employee (which the employer claimed took place before notice of an EEOC charge).  Had there been some form of authentic documentation to show the decision was made to terminate the employee 5 days before a copy of the EEOC charge was delivered to the employer, it might have alleviated the court’s concerns about the accuracy of the employer’s story.

Retaliation claims now top the list as the most prevalent type of claim filed with the EEOC.  The fact an employee engages in protected activity does not shield that employee from legitimate adverse employment action, but employers do have to be prepared to “prove” there was not a causal connection between the protected activity and adverse action.  Detailed documentation of employment decisions is a must to break the causal connection – and ideally will show the employment decision was made by persons or at a time in which knowledge of the protected activity was unknown…the absolute best defense to a retaliation claim.

A Once-In-A Blue Moon Ruling – Three FMLA Nuggets In One Case!

Contributed by Brandon Anderson

It’s not very often that a federal court rules on an “issue of first impression” (i.e. something that has not previously been ruled on).  It is also not very often that a court ruling has multiple “take away” points that may impact future cases.  Imagine the unexpected surprise on September 4, 2012, when a U.S. First Circuit Court of Appeals issued a ruling that contained both.

The case, Pagan-Colon v. Walgreens of San Patricio, Inc., involves a rather typical Family and Medical Leave Act (FMLA) retaliation claim.  The employee was hospitalized because of a heart problem, underwent surgery, and, within two weeks, he was discharged.  The employee alleged that he and his wife frequently updated the employer on the employee’s condition.  The employer claimed it requested an explanation for his absence, but never received a response.  The employee was discharged for job abandonment.  Following the employee’s repeated requests for an explanation and after presenting medical documentation, the employer reconsidered its decision.  The employer investigated the incident and because its other employees and management claimed they had no recollection of the employee or his wife contacting them or bringing in medical documentation, the employer discharged the employee for making dishonest statements during the investigation.  The jury disagreed with the employer’s conclusions and found in favor of the employee.

Okay, so get to the “issue of first impression” and the other “take aways,” right?

Issue of First Impression: in upholding the jury’s damage award for $47,145 in back pay, the court held that the provision in the FMLA that allows a prevailing employee to recover wages and “other compensation denied or lost” can encompass lost over-time earnings.  Apparently the employee worked a lot of overtime—$20,637 of the $47,145 award was for overtime.  The method used to calculate the overtime, using the year-to-date average of weekly hours in the months preceding termination, was also upheld by the court.

Take Away 1: The chameleon-like termination reason is bad.  The court held that a jury could reasonably find that the employer’s change in reason for termination to be pretext for retaliation.  Also, as I’ve harped on before, the timing of a termination can also be evidence of retaliation.  Frankly, there could hardly be worse timing than firing someone while he is providing medical documentation and trying to return to work after heart surgery.

Take Away 2: Somewhat surprisingly, considering the facts. The court affirmed the lower court’s denial of liquidated damages, which are allowed unless the employer can prove it acted in good faith and had reasonable grounds for believing the discharge was lawful.  The court essentially chalked the matter up to a breakdown in communications at the work location-level that prevented management from learning about the facts in a timely manner.   While I would not recommend blaming violations of federal law on a breakdown in communications, if that is what happened, all hope might not be lost.

EEOC Issues Draft Strategic Enforcement Plan for Comment

Contributed by Jill Cheskes

As has been discussed previously on this blog, the EEOC has shifted its investigatory and litigation tactics over the last few years in a tangible way that could affect any employer at any time before the agency.  Since 2006, the EEOC has focused extensive resources on ferreting out “systemic discrimination.”  This continues to be a prime focus of the EEOC.  The agency published their Strategic Enforcement Plan (SEP) on September 4, 2012 and is seeking public input prior to voting on it on September 30, 2012. 

The SEP indicates that the EEOC’s guiding principles are based on the belief that “targeted enforcement efforts will have the broadest impact to prevent and remedy discriminatory practices in the workplace.”  To that end, the EEOC has identified is nationwide priorities as:

  1. Eliminating Systemic Barriers in Recruiting and Hiring – the EEOC will be looking at both intentionally discriminatory hiring and recruiting practices as well as facially-neutral policies that have a disparate impact;
  2. Protecting Immigrant, Migrant and Other Vulnerable Workers – the EEOC will be targeting disparate pay, job segregation, harassment, trafficking and discriminatory policies that may be affecting these workers who are unaware of their rights;
  3. Addressing Emerging Issues – Identified as ADAAA issues, LGBT coverage under Title VII sex discrimination provisions, and accommodating pregnancy;
  4. Preserving Access to the Legal System – the EEOC will target policies intended to discourage access such as retaliation, overly broad waivers, settlement agreements that prohibit filing a charge or providing information to the EEOC and failure to retain records;
  5. Combating Harassment – the EEOC wants to re-evaluate its strategies in this regard including refocusing efforts on a national education and outreach campaign for both employers and employees. 

As can be seen by these initiatives, the EEOC’s number one priority remains to root out systemic discrimination by companies and is now focusing on hiring practices, which is likely something that most employers don’t address nearly as much as discrimination or harassment of existing employees. 

Additionally, the EEOC’s focus on vulnerable workers and emerging issues shows a true determination to address issues that are probably not fully on employers’ radar screens.  The EEOC’s SEP makes it clear that employers will continue to face many challenges when responding to charges of discrimination and will continue to have an aggressive approach by the EEOC.

Ignorance Can Be Bliss for Employers Facing Retaliation Claims

Contributed by Jon Hoag

The Director for one of ITT Technical Institute’s campuses reported what he believed to be irregularities that violated the Institute’s Participation Agreement with the U.S. Department of Education. He made these reports to his direct supervisor and the Director of Compliance. At approximately the same time, this Director’s campus came under scrutiny because it received low scores during an internal audit. In addition, several complaints were made about the Director’s conduct and management style.

Several ITT Vice-Presidents and the CEO discussed the Director’s performance and decided to terminate the Director’s employment.  The Director sued alleging that he was terminated in retaliation for engaging in conduct covered by the False Claims Act.  The Seventh Circuit assumed that the Director’s reports of irregularities were covered by the False Claims Act, but ruled that his retaliation claim still failed because he could not prove that he was terminated because of making reports under the False Claims Act.

The Seventh Circuit reiterated that in retaliation cases the decision-makers must have knowledge of the employee engaging in the protected activity in order for the employee to prove the termination was caused by engaging in protected activity.  The evidence showed that the decision-makers were never informed about the Director’s complaints, nor did they otherwise have any knowledge of the Director engaging in protected activity.  The Court refused to impute knowledge of protected activity merely because lower level supervisors in the organization had knowledge of such conduct.

Inasmuch as retaliation cases are on the rise, employers might be well served by keeping the decision-makers “in the dark” about certain types of protected activity.  There are obvious practical limitations with this type of strategy, but employers should certainly balance the pros and cons of how information about protected activity is disseminated.

Sexual Harassment of Lifeguard Yields $3.5m Pain and Suffering Jury Award

Contributed by Terry Fox

On August 24, 2012, a Washington, D.C., jury awarded Carmen Jean-Baptiste $3,500,000 for emotional distress for sexual harassment by her supervisor.  Jean-Baptiste was a 43-year-old lifeguard harassed by her male supervisor, Rodney Weaver.  Despite repeated complaints to others at the Takoma aquatic center about Weaver’s conduct, the harassment did not stop.  When Jean-Baptiste filed a written complaint, she was fired.

The jury foreman felt “embarrassed” by how the complaints by Ms. Jean-Baptiste were handled.  He stated that superiors ignored and stalled any action on the complaints.  The trial court has yet to award back pay damages to Ms. Jean-Baptiste.

This report is provided to those employers without enough worries to keep them up at night.  Some comfort may be taken from the limits provided by Title VII for private employers.  Non-monetary damages are capped by size of the employer to a maximum of $300,000 for a single employee complaint. However, state statutes sometimes have no limitations, as is the case with the Illinois Human Rights Act.  Pain and suffering is not limited in any manner by the Illinois Act, and punitive damages are also available.

District Court Sides With Employee Who Cuts The Cheese (Or, How The Scope of Title VII Retaliation Is Expanding)

Contributed by Allison Chaplick

Over the last several years, the U.S. Supreme Court has expanded the scope of retaliation claims brought under Title VII of the Civil Rights Act of 1964. Title VII prohibits an employer from discriminating against an employee who “opposed any practice” prohibited by Title VII or who “made a charge, testified, assisted, or participated in any manner in an investigation, proceeding or hearing” under Title VII.  42 U.S.C. § 2000e-3(a).  These are commonly known as the “opposition clause” and the “participation clause.”

In CBOCS West v. Humphries, the U.S. Supreme Court permitted a retaliation claim brought by an employee who was complaining about discriminatory conduct aimed at another employee.  This was significant because typically, the run-of-the-mill retaliation case has to do with an adverse action taken against an employee for complaining about his/her own discriminatory treatment.  Then, in Crawford v. Metropolitan Gov’t., the high court held that the opposition clause afforded protection to employees who participated in an employer’s internal investigation into complaints of discrimination lodged by another employee.

These rulings lead to last week’s decision from the Northern District of Illinois in Flores Gomez v. Restaurant One Limited Partnership d/b/a Spiaggia Restaurant and Café.  In this case, the plaintiff was a formaggaio, or cheese steward, at Spiaggia Restaurant in Chicago.  Spiaggia’s attorneys met with several of the restaurant’s employees to investigate claims of race discrimination brought in a charge of discrimination filed with the EEOC by a former Spiaggia employee. Flores was one of the employees who met the Spiaggia’s attorneys.  Seven months later,Flores was terminated for allegedly serving gratuitous wine to customers without getting a manager’s authorization to do so. Flores claimed he was terminated in retaliation for speaking with Spiaggia’s attorney.

The district court noted that the Seventh Circuit had not taken a position on the issue of “whether participation in an internal investigation begun after a charge filed with the EEOC should be treated as participation in the official investigation.”  Having carte blanche, the district court held that participating in an internal investigation commenced in response to an EEOC charge or Title VII lawsuit is statutorily protected activity under the “participation clause.”

This ruling is important for one reason: with more and more charges of discrimination filed these days, employers and their attorneys are justifiably engaging in the same internal investigation that Spiaggia performed to understand the allegations or form defenses to allegations of discrimination.  Now, under Spiaggia, employers must be aware that for each employee who participates in an investigation is now cloaked with the protections afforded under Title VII that prohibit retaliation for engaging in protected activity.

Perhaps Monty Python was right about the cheesemakers…

Horseplay In The Workforce Ain’t What It Used To Be And It Could End Up Costing You Big Bucks!

Contributed by Heather Bailey

A Louisiana jury was correct when it found that a survey crew instrument man at an engineering firm was sexually harassed by his supervisor’s boss who happened to be a male as well.  Cherry v. Shaw Coastal, Inc., 5th Cir., No. 11-30403, 1/19/12.  The harasser started off by brushing the employee’s hair, then he would ask the employee to take his shirt off and to wear revealing clothing.  The behavior escalated to inappropriate sexual text messages, repeated touching of the body and hair, and an invitation to sleep over and wear his underwear.  There was one occasion where the harasser touched the employee on the buttocks.  During this time, the employee repeatedly told the manager that he was uncomfortable and that the manager should keep his comments to himself.  

The employee’s supervisor knew his boss was acting inappropriately and complained twice to two different managers who were overseeing the project they were all working on together.  Nothing was done and the managers never informed human resources of the complaints.  After the third compliant when the employee finally complained to the same management team, the manager questioned that the harasser’s conduct was probably just “horsing around.”  After yet another complaint, management finally removed the employees from working on the same crew.  However, the harasser was still able to make the employee feel uncomfortable so he escalated his complaint.  Finally, management informed human resources, but not before questioning the conduct was just “horsing around” again.

Human resources conducted an investigation yet concluded the issue was one word against the other and took no further action.  Again, the company took no further action when the employee complained the harasser was then retaliating against him for complaining.  The employee then resigned because the company failed to take any action and he could no longer take the harasser’s treatment.

The court said the jury was right that there was same-sex harassment here based upon the manager’s vulgar sexual text messages which propositioned the employee, an offer to stay at his house and wear his underwear, and the repeated offensive physical touching and caressing which included a single instance on the buttock.  The court said all of this conduct was “severe and pervasive,” which is a test for proving sexual harassment.  

The lesson learned here is that the company was liable due to its failure to take prompt remedial action. It had a policy that required management to report any complaint to human resources, but management didn’t follow that policy here and even suggested that the inappropriate conduct was just horseplay.  When management finally followed the policy, human resources – despite having documented proof and a superior as an eye witness — did nothing. 

Spring Cleaning Tips

  • Update the company’s Anti-Harassment and Discrimination Policies, and if you don’t have one to update, create one immediately!
  • Train all employees on the do’s and don’t’s of sexual harassment and discrimination, including management on what to do when an employee complains or when management sees inappropriate conduct taking place. 
  • Review the company’s complaint and investigation procedures to ensure complaints are taken seriously and investigations are conducted effectively with a focus of remedial action when necessary.

We recommend you contact your employment counsel to ensure your policies and practices are tuned up.

EEOC Receives a Record Number of Charges of Discrimination in Fiscal Year 2011

Contributed by Jill Cheskes

The recognized tenet that when the economy is in a downturn, employment claims rise is no more apparent than in the EEOC’s most recent statistics regarding charges of discrimination filed with the agency.  Employers, who are already facing tough economic challenges and searching for ways to make a profit, are faced with a record number of claims by employees and ex-employees. 

In 2011, the EEOC took in 99,947 charges of discrimination, which is the largest number of charges filed in the agency’s 46 year history.  In 2007, before the economic downturn, the number of charges filed was 82,792.  The EEOC also boasted on its web site that the agency took in a record “$364.6 million in monetary benefits for victims of workplace discrimination.” 

For the second year in a row, retaliation claims lead the pack with 37.4% of the charges filed containing a claim for retaliation.  Before 2010, race claims historically were the most frequent type of claim filed.  Race claims were down for the second year in a row and came in at 35.4%.  National origin, religion, age and disability claims are all on the rise as well.

The EEOC has seemingly taken one of two tracks in investigating charges of discrimination.  The first is that they take no action for an extended period of time.  The EEOC has charges that are sitting for many years with no action occurring.  This is frequently attributed to a huge backlog of cases, which should only worsen given the ever-increasing number of charges being filed.

Second, is that they take a hyper-aggressive and broad approach to these investigations by requesting extremely broad information going well beyond the individual complainant at issue.  The EEOC has been increasingly searching for classes to pursue and this is evident in their investigation techniques. 

Both courses of investigation will continue to tax employers’ resources and time and there does not seem to be any chance of significant relief from these claims for employers in the near future.