RETALIATION: How to Prevent the #1 Employee Complaint

Presented to:

13th ANNUAL LABOR & EMPLOYMENT LAW

ADVANCED PRACTICES SYMPOSIUM

March 29-31, 2017

Presented by:

Deborah S. Adams

George E. Yund

Labor & Employment Group

Frost Brown Todd LLC

3300 Great American Tower

301 E. Fourth Street

Cincinnati, OH 45202

513.651.6800

513.651.6981 (fax)

James C. Dale

Stoel Rives LLP

101 S. Capitol Boulevard, Suite 1900

Boise, ID 83702-7705

208.387.4282

208.389.9040 (fax)

1

INTRODUCTION

Retaliation is related to nature and instinct, not to law. Law, by definition, cannot obey the same rules as nature. -- Albert Camus

In Fiscal Year 2016, the Equal Employment Opportunity Commission reported that it received 42,018 charges alleging that employers had retaliated against employees for exercising rights protected under the statues it enforces.[1] That number amounted to 45.9% of all charges filed with the EEOC – more than any category of charge filed. Why? Because retaliation claims follow in tandem along with claims of harassment and discrimination, resonate with juries and result in larger verdicts.

The sources of protection against retaliation against employees for engaging in “protected activity” are many. They range from the traditional (e.g., filing an EEOC charge) to new ones like the Patient Protection and Affordable Care Act or Sarbanes-Oxley which contain numerous statutory whistleblower protections for employees.

On August 29, 2016, the EEOC released its final enforcement guidance on retaliation. The final guidance replaces the EEOC’s 1998 Compliance Manual section on retaliation.[2] The EEOC last issued retaliation guidance in 1998. The 2016 proposed guidelines take into account Supreme Court decisions decided between then and now, including:

  • University of Texas Southwestern Medical Center v. Nassar (2013) – established “but for” causation standard in Title VII retaliation claims.
  • Kasten v. Saint-Gobain Performance Plastics Corp. (2011) –employee discharged because his fiancé filed a charge has a retaliation claim.
  • Burlington Northern and Santa Fe Railway v. White (2006) – unlike discrimination, protection against retaliation extends beyond the workplace.
  • Crawford v. Metropolitan Govt. of Nashville & Davidson County (2009) – opposition may be passive or non-initiative.

I.COMMON SOURCES FOR RETALIATION CLAIMS

A.Major Federal Employment Laws.[3]

Virtually all major federal labor and employment laws prohibit retaliation against employees who exercise rights under those statutes, such as Title VII, ADEA, ADA, FMLA, NLRA, LMRA, FLSA, OSHA, ERISA, USERRA, FIERRA, AIR 21, Railway Safety Labor Act, Mine Health and Safety Act, RICO, the Longshore and Harbor Workers’ Compensation Act, and on and on and on.

B.Federal Whistleblower Laws

In addition to employment statues prohibiting employers from retaliating against those who assert employment related rights, there are also numerous federal statutes prohibiting retaliation against those who report violations of law, externally, internally or both, e.g., Sarbanes-Oxley, HIPAA, Dodd Frank, Toxic Substance Control Act, FIERRA, and on and on and on.

C.State Laws.

Each state approaches whistleblower laws slightly differently. While most states have enacted some form of statutory whistleblower protection, the form and content of these laws vary. Some states only protect public employees, while other states protect all employees. Some states have a single whistleblower act, while others have piecemeal statutory protections. Notably, most states’ employment discrimination laws also contain anti-retaliation provisions similar to their federal counterparts. If you have any questions, you should seek counsel on your state’s specific statute or statutes.[4]

II.Elements of A Retaliation Claim

While the required elements of each claim may differ in each statute, most plaintiffs bringing such actions must prove that:

1)he or she engaged in an activity protected by the statute;

2)the employer took an adverse action against the plaintiff following the protected activity; and

3)there is a causal relationship between the protected activity and the adverse action.

In the absence of direct evidence that an employer engaged in retaliation, federal and state courts have followed the same proof model used for over 40 years in employment discrimination cases. Once a plaintiff proves the above, then an employer can defend itself by producing evidence that it acted for legitimate, non-retaliatory reasons. Once that is proffered, the ultimate burden of proof rests with the plaintiff to show that the proffered reason is a “pretext” for unlawful retaliation.

A.ProtectedActivity.

Examples include:

  • instituting or threatening to institute a legal procedure under the statute (e.g., filing a charge or claim with an agency such as NLRB, OSHA, EEOC, a worker’s comp claim, a lawsuit, etc.)[5];
  • participating or assisting someone else who brings a charge or legal proceeding;
  • opposing allegedly illegal activity or refusing to perform an illegal act based on a good faith belief;
  • exercising a right created by the statute, such as requesting a reasonable accommodation under the ADA or leave under the FMLA;
  • depending on the statutory provisions, reporting an employer’s illegal activities externally to a governmental agency or internally to a supervisory employee;
  • jury duty;
  • consulting an attorney;
  • reporting safety violations, internally or externally;
  • in some states, engaging in any lawful activity away from the workplace, such as smoking;
  • in some states, engaging in the lawful activity of gun-possession, even on employer’s property;
  • per EEOC guidance, asking managers or coworkers about salary information to uncover potentially discriminatory wages;
  • complaining about unsafe work practices or conditions;
  • First Amendment activity;
  • depending on the circumstances, social media activity, such as being critical of a company’s inequitable pay system or an abusive supervisor.

Generally speaking, there are two broad categories of “protected activity”: “participation” and “opposition.” For example, the anti-retaliation provision of Title VII has two clauses, making it unlawful for an employer to discriminate against any of its employees (or ex-employees or others) (1) because the employee had a reasonable, good-faith belief he was opposing, to the employer or elsewhere, a practice made unlawful under the statute (“opposition activity”), or (2) because the employee made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing (“participation activity”).

Participation protection is extremely broad. Even untrue allegations in charges, for example, may be protected. Otherwise, a “chilling effect” may occur, where employees hesitate to file charges for fear of termination or other discipline should the charge be unsubstantiated.

Opposition protection is more limited. Opposition activity must be reasonable. In its 2016 Guidance, the EEOC takes the position that “participation” includes an employer’s internal complaint process. That is not the current majority view of the federal appellate courts.

1.Examples of activities courts have held are protected:

  • Employer-solicited complaint.
  • E.E.O.C. v. Rite Way Service, Inc., 819 F.3d 235 (5th Cir. 2016).
  • Employee was a third party eye-witness to two potential sexual harassment incidents.
  • After the harassed employee complained, the Company investigated. The investigation included an interview of Employee, in which Employee implicated her supervisor.
  • The supervisor was transferred and his brother-in-law took his place. In the first five weeks of the new supervisor’s tenure, Employee received three warnings – the first three she ever received in her time with Company – and her employment was terminated.
  • Citing Crawford v. Metropolitan Government of Nashville & Davidson County, Tennessee (discussed below), the court held that a statement solicited by an employer can be “opposition” sufficient to support a retaliation claim.
  • Vague complaint.
  • Braun v. Ultimate Jetcharters, LLC, 828 F.3d 501 (6th Cir. 2016).
  • Female pilot alleged her male co-workers often made comments about her marital status, uniform, off-duty behavior during layovers, and engaged in other harassment.
  • Employee made four phone calls to the Company’s director of operations, saying her co-workers were harassing her because she was female. The director told her to put it in writing.
  • Employee then wrote an email to her co-workers telling them to stop because their conduct was “bordering on harassment.”
  • Employee was terminated for sending inappropriate emails.
  • The court held the phone calls and email together constituted protected opposition and therefore the $170,000 jury award would stand. Anti-retaliation law does not require employees to lodge their complaints with “formality, clarity, or precision.”
  • Unofficial / informal complaint.
  • Winters v. Bd. Of County Com’rs of Moskogee County, Okla., 2015 WL 8479745 (10th Cir. Dec. 10, 2015).
  • Employee’s request for overtime compensation was denied.
  • Employee asked his supervisor why it was denied. The supervisor became angry and terminated Employee.
  • The court held Employee engaged in protected activity even though it was an unofficial complaint. Further, the court held that it did not matter that Employer did not actually engage in illegal activity—what matters is whether Employee reasonablybelieves Employer engaged in illegal activity.
  • Employee could bring FLSA retaliation claim.
  • Participation in investigation, even absent formal complaint.
  • Crawford v. Metropolitan Government of Nashville & Davidson County, Tennessee,555 U.S. 271.
  • Employer interviewed Employee while conducting an investigation into rumors of sexual harassment by co-worker. During the interview, Employee related several instances of sexually harassing behavior by co-worker.
  • Although Employer did not take any action against co-worker, it fired Employee and two other accusers at the end of the investigation based on Employee’s “embezzlement.”
  • Even though Employee had not instigated or initiated a complaint, her participation in the process was a protected activity.

2.Examples of activities courts have held are not protected:

  • Lord v. High Voltage Software, Inc., 839 F.3d 556 (7th Cir. 2016).
  • Employee Lord alleged that his co-workers constantly teased him about being attracted to another employee and that another co-worker inappropriately touched him by slapping him on the buttocks.
  • On the day after complaining to HR about the touching, he and the co-worker accused of the touching were written up for poor performance.The supervisor who issued the write-up later retracted it after he discovered Employee was not responsible for the poor presentation that led to the write-up.
  • In response to the write-up, Employee wrote an email to HR stating that the write-up was retaliation and that he was prepared to file a complaint with the state human rights commission.
  • Employee and the alleged harasser were fired the next day. Employee lost his job for failure to timely report the unwanted touching as well as for writing the incendiary email about the write-up instead of simply pointing out the supervisor’s error that he was at fault for the bad presentation.
  • The court found that Employee’s complaints were objectively unreasonable. The conduct complained of was workplace banter and conduct with sexual overtones. There was no suggestion the conduct was because of Employee’s sex. It was therefore unreasonable for Employee to believe the complaints concerned the type of conduct Title VII prohibits.
  • Isley v. Aker Philadelphia Shipyard, Inc., 191 F.Supp.3d 466 (E.D. Pa. 2016).
  • Employee suffered a minor finger injury at work. He required no immediate medical treatment. His request for light-duty was denied and he returned to work. Several days later, he claimed the injury had gotten worse and filed a workers’ compensation claim. When he failed to report for a drug test as part of the workers’ compensation process, his employment was terminated.
  • The court held that Employee had no reasonable, good faith belief he was entitled to request a reasonable accommodation. His request for light duty was therefore not protected activity sufficient to support an ADA retaliation claim.
  • Paasch v. National Rural Electric Cooperation Assoc., 177 F.Supp.3d 930 (E.D. Va. 2016).
  • Employee made internal complaints concerning the Company’s mismanagement of its ERISA benefit plans. After making the complaints, Employee’s supervisors told her to investigate and issue a report, which she did. She was soon thereafter fired for poor performance.
  • The court held that ERISA does not protect internal complaints, even if they are formal written reports to company management. ERISA’s anti-retaliation provision specifies that any opposition must be made in the context of an “inquiry or proceeding.”
  • Street v. U.S. Corrugated, Inc., 2011 WL 304568 (W.D. Ky. Jan. 25, 2011).
  • Six employees complained that a recently-hired turn-around specialist abused them by yelling profanity, throwing things and threats. The Company fired the turn-around specialist and within six weeks, five of the six complainers were laid off and the other demoted. They had no retaliation claim because they “opposed” general abuse not unlawful practices.

B.Adverse Action.

In 2006, in a Title VII case, the Supreme Court held that the adverse action element would be satisfied if the employee shows that the action would dissuade a reasonable worker from engaging in protected activity.[6] The Court also said that filing a charge would not immunize an employee from the “petty slights or minor annoyances that often take place at work and that all employees experience.”[7] It is expected that this standard will be extended to retaliation analyses under other statutes. Examples of adverse actions may include: termination, demotion, transfer, reassignment of job duties, suspension, schedule change, monitoring of e-mails, poor evaluations with negative job consequences, ostracism, removal from training, increased or atypical surveillance, threats and/or other manifestations of punitive animus.

1.Examples of actions courts have held are adverse:

  • Increased scrutiny.
  • Lee v. Cleveland Clinic Foundation, 2017 WL 244785 (6th Cir. Jan. 20, 2017).
  • Employee made several complaints of discrimination based on race and age. Within two weeks, she was put on a PIP. She complained the PIP was retaliatory.
  • Following these complaints, Employee alleged her managers followed her around and asked her patients questions about their care and that this was not done for younger white nurses.
  • The court held that the increased scrutiny and surveillance could support a retaliation claim.
  • Refusal to rehire.
  • Volling v. Kurtz Paramedic Services, Inc., 840 F.3d 378 (7th Cir. 2016).
  • One Employee made allegations of sexual harassment, discrimination, and retaliation againsther Employer, Metro, and ARS, a government agency that hired Metro to perform paramedic services. The second Employee testified against ARS and Metro in support of the first Employee.
  • Shortly thereafter, ARS terminated its subcontract with Metro and hired Kurtz in its place. Kurtz was instructed to exclusively hire Metro paramedics. All but the two plaintiff Employees were re-hired. The positions were not advertised and no applications were received.
  • The court found that failure to hire the Employees despite their not having actually applied was adverse activity sufficient to support claims of retaliation.
  • Retracting a gratuitous promise.
  • Cordova v. R & A Oysters, Inc., 169 F.Supp.3d 1288 (S.D. Ala. 2016).
  • Employees were migrant workers admitted to the United States under the H-2B program. Employees claim the Company failed to pay them the prevailing wage as required by Department of Labor regulations and filed suit.
  • Employees also claim that the Company then retracted its offer to sponsor the H-2B visas for Employees for the coming year in retaliation for the lawsuit. The Company argued the offer to sponsor was an unenforceable gratuitous promise.
  • The court held that retracting a gratuitous promise can constitute adverse action under Burlington Northern.
  • Email identifying employee as whistleblower.
  • Halliburton, Inc. v. Admin. Review Bd., 771 F.3d 254 (5th Cir. 2014).
  • Court held employer violated SOX by disclosing the employee’s identity as a whistleblower in an email to co-workers because doing so would dissuade the co-workers from filing complaints in the future.
  • The court affirmed a $30,000 award to the employee.

2.Examples of actions courts have held are not adverse:

  • Trivial harms.
  • Brown v. LaFerry’s LP Gas Co., Inc., 2017 WL 318822 (E.D. Ok. Jan. 23, 2017).
  • An employee who said coworkers refused to talk to him after he complained of race discrimination and resigned for another job had no claim since receiving the “cold shoulder” by coworkers was not an “adverse employment action.”
  • Simple write-ups.
  • Kubiak v. S.W. Cowboy, Inc., 164 F.Supp.3d 1344 (M.D. Fla. 2016).
  • A write-up without an accompanying reduction in pay, benefits, responsibilities, or some other adverse effect cannot constitute an adverse action.
  • Granting a request for transfer.
  • Kennedy v. UMC University Medical Center, -- F.Supp.3d --, 2016 WL 4497062 (Aug. 25, 2016).
  • Employee who alleged sexual harassment and race discrimination requested transfer to another department.
  • Granting the transfer, which came with a 4 percent salary increase, was not an adverse action.
  • Minor changes in duties.
  • Hargrove v. AARP, -- F.Supp.3d --, 2016 WL 4734322 (Sep. 9, 2016).
  • Shortly after requesting an accommodation under the ADA, Employee alleges she was assigned less desirable projects.
  • The court held that the changes in assignments did not come with decreased pay or any other concrete harm. The assignments were therefore not adverse actions that could support a retaliation claim.

C.Causal Link.

Because it is rare for any manager to admit that an action was taken against an employee in retaliation, most cases turn on circumstantial evidence, such as temporal proximity or disparate treatment.

It is good news for employers that in 2009, in University of Texas Southwestern Center v. Nassar, 133 S. Ct. 2517 (2013), the Supreme Court adopted a “but for” test rather than a “motivating factor” test in retaliation cases. Retaliation has to be “the” reason, not one of many.

1.Examples when courts have found a causal link:

  • “Close” temporal proximity.
  • Hinton v. Virginia Union University, 185 F.Supp.3d 807 (E.D. Va. 2016).
  • Employee had filed an EEOC charge in 2008. He made an internal complaint in 2013. Both alleged unfair pay because he was gay.
  • Green, the manager Employee alleged retaliated against him, knew of the complaints at the time they were made but was not then his supervisor.
  • When Green became Employee’s manager, she told him to stop the “drama.” She later reprimanded him and told him that the President of the University told her to do so because he did not like Employee’s sexual orientation.
  • The University alleged the 2008 and 2013 opposition was too remote in time to support a retaliation claim.
  • The court, however, held that although there was significant time between, Green retaliated at the “first opportunity,” i.e. as soon as she had power to take an adverse action against Employee.
  • Walker v.