Retaliation in the Supreme Court - Danger Zone for Employers

If there is one area of Supreme Court jurisprudence that employees can certainly not complain about it is the law of retaliation Today's decision in Thompson v. North American Stainless (S.Ct. 1/24/11) certainly does nothing to change that. A unaminous Court (with Justice Kagan not sitting) held that an employee who had been fired for his fiancee's protected activity was also protected by Title VII.

If I had any hope for an employer favorable decision, I had thought it would come from the strict constructionists, who could read the language of Title VII:

because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.

to mean that Congress had said it was the individual who actually engaged in the protected activity that was protected, since it did not read because "he, or someone he is close to" had done certain acts. Which is what the en banc 6th Circuit had done.

I thought that they might have also noted that Congress knows how to expand the zone when it wishes, e.g. the Americans with Disabilities Act which contains a specific provision for association type discrimination where of course Title VII does not.

But when I saw today's opinion was authored by Justice Scalia, I knew it was not to be.

As of now, employers have an unclear line (conceded by Justice Scalia) about what relationship will be considered sufficient to extend one employee's concerted activity to another:

Applying the Burlington standard to third-party reprisals, NAS argues will place the employer at risk any time it fires any employee who happens to have a connection to a different employee who filed a charge with the EEOC.

Although we acknowledge the force of this point, we do not think it justifies a categorical rule that third-party reprisals do not violate Title VII. As explained above, we adopted a broad standard in Burlington because Title VII’s anti-retaliation provision is worded broadly. We think there is no textual basis for making an exception to it for third-party reprisals, and a preference for clear rules cannot justify departing from statutory text.

The easy way to look at today's decision is that the zone of protected activity is now expanded beyond the protection of the one who engages in the activity. Just how far and under what circumstances that zone will reach will be fought out in the courts. A battle that no doubt starts today.
 
The guidelines, to the extent we have them are this:

We must also decline to identify a fixed class of relationships for which third-party reprisals are unlawful. We expect that firing a close family member will almost always meet the Burlington standard, and inflicting a milder reprisal on a mere acquaintance will almost never do so, but beyond that we are reluctant to generalize. As we explained in Burlington,  “the significance of any given act of retaliation will often depend upon the particular circumstances.” Given the broad statutorytext and the variety of workplace contexts in which retaliation may occur, Title VII’s antiretaliation provision is simply not reducible to a comprehensive set of clear rules. We emphasize, however, that “the provision’s standard for judging harm must be objective,” so as to “avoi[d] theuncertainties and unfair discrepancies that can plague ajudicial effort to determine a plaintiff’s unusual subjective feelings.”

I am afraid those 'guidelines' leave a lot of "filling in" for the lower courts to do.  

So I was right -- the "strict constructionist view" controlled, just not the way I had hoped. Which may just show that even when one is "strictly construing" legislative wording, it is possible for judges to "make" not just "interpret" the law. Imagine that.

Another Interesting Development from Last Tuesday - $4 MDV for FLSA Retaliation

While most eyes were turned to the election results last Tuesday night, a former Los Angeles policeman was enjoying a $4 million dollar verdict in his favor, after a jury agreed that he had been fired because of his testimony in a federal wage and hour lawsuit brought against the city by another officer.

Richard Romney had testified that he had followed the "unwritten policy" of denying officer's pay for less than a full hour of overtime. After his testimony, an investigation was initiated and he was ultimately discharged for violating the city's written rules on overtime. L.A. County jury awards $4 million to former LAPD officer.

Although all jury verdicts have a long way to go before they become collectable judgments, this one has an additional and somewhat unusual hurdle. It could be severely influenced by the Supreme Court's decision in Kasten v. Saint-Gobain Performance Plastics, which was argued on October 13th. The transcript of the argument is here.[pdf]

Part of the issue is that the FLSA was really the first statute to provide employee rights and a prohibition against retaliation outside the union context, and Congress had not yet had the ability to focus on all the aspects of what protected activity really needed to be covered. Whether the statute is applied as it was written or as Congress would no doubt write it now, may make all the difference.

And in this case, that's a big difference.

McDonnell Douglas Bites the Dust in Tennessee

Yesterday I wrote about Texas' own little corner of the workers' comp world, today it is the Volunteer State's turn to take the spotlight for its unique view of an element of employment law. In Gossett v. Tractor Supply Co. (Tenn. 9/20/10) a sharply divided Supreme Court dumped one of the long time stalwart's of employment discrimination and retaliation, the McDonnell Douglas shifting burden of proof for evaluating a plaintiff's claim.

The Cour rather unceremoniously concluded,

we hold that the McDonnell Douglas framework is inapplicable at the summary judgment stage because it is incompatible with Tennessee summary judgment jurisprudence.

Actually the headline to this post is technically inaccurate, since the Court went on to say

 Furthermore, when applied at the summary judgment stage, the shifting burdens of the McDonnell Douglas framework obfuscate the trial court's summary judgment analysis. The McDonnell Douglas framework "is intended to progressively sharpen the inquiry into the elusive factual question of intentional discrimination" or retaliation. Burdine, 450 U.S. at 254 n.8. Although such inquiry is particularly appropriate at trial, it is ill-suited for the purpose of determining whether "there is no genuine issue as to any material fact."

Most employment law practitioners outside Tennessee state court will be somewhat surprised with that view, since most of the jurisprudence is that once a case actually gets to trial, the McDonnell Douglass framework is particularly inappropriate.

Although it might be found on a closer reading of the opinion, what seems to be missing from the majority's opinion is a basic understanding of what the McDonnell Douglas framework was intended to do. The United States Supreme Court that created it was faced with how does an employee prove intentional discrimination based on a protective category, when it is highly unlikely that employers will admit to such.

One way they concluded was to set up a prima facie case of factors that do not conclusively prove discrimination, but if totally unrebutted, would be sufficient to permit an inference of discrimination to be drawn. They placed the burden of establishing the prima facie case on the plaintiff, allowing them to create an inference of discrimination.  However, when the employer articulates a legitimate business reason that would explain the facts that were used to establish the prima facie case.  When that happens the burden then reverts to plaintiff to show that the real reason for the discrimination was their membership in a protected class.

Now clearly the formulation has gotten a little more complicated and some well known federal judges, most notably Judge Posner of the 7th Circuit, are clearly not fans, but to merely toss it out without even making it clear that they understood how it came to be, seems somewhat odd.

Relational Retaliation: More Than A Mouthful, Another Step Forward?

Jon Hyman at Ohio Employer's Law Blog has been all over the reporting of the 6th Circuit decision of Thompson v. North American Stainless, whose latest iteration at that level was an en banc rejection of a retaliation claim brought by an employee fired three weeks after his fiancee' filed a charge of discrimination against the same company. Since he himself did not engage in any protected activity, the en banc court overturned a panel decision which had held he was within the zone of protection of the anti-retaliation provisions.

Jon is understandably concerned that the Supreme Court granted certiorari yesterday in this case, noting in what if anything is an understatement that "this Court has proven itself favorable to employee rights in retaliation claims." Check out his post. Supreme Court agrees to hear associational association retaliation claim, for links to his past coverage and his promise to follow this one through next term's argument and decision.

However, this is ultimately a question of statutory construction, which calls to mind Jackson v. Birmingham Board of Education, where the dispute was whether Title IX prohibited retaliation, although there was no anti-retaliation provision in the statute itself.  In a 5-4 decision, the court's opinion finding retaliation was prohibited was authored by Justice O'Connor.  Significantly one of the dissenters was Justice Anthony Kennedy. 

Although that was only five years ago, there will be four new justices on the Court that decides North American Stainless, Justices Roberts, Alito, Sotomayor and presumably Kagan. Substitute Sotomayor and Kagan for Souter and Stephens, Roberts for Rehnquist and Alito for O'Connor and if Kennedy's vote had remained the same Jackson would have gone the other way. So maybe North American Stainless will be better for employers than one might think on first blush.

5th Circuit En Banc Request on Smith v. Xerox, Please!

A three judge panel of the 5th Circuit yesterday divided sharply on a case that poses a number of interesting legal issues of great importance for discrimination and retaliation cases in the 5th Circuit. It cries out for an en banc review. Smith v. Xerox Corp. (5th Cir. 3/24/10) [pdf].

Among the issues decided:

• the Gross analysis is not applicable to Title VII retaliation cases;
• that a case seemingly tried on a pretext basis will support a mixed motive submission, and plaintiff is not forced to concede that there is some valid basis for termination in order to obtain a mixed motive instruction; and
• where there was good evidence of the basis for the termination decision, and no real focus on the subjective intent of the managers making the termination decision, there was insufficient evidence to support a $250,000 punitive damage award.

Although Xerox lost on the first two points, it did prevail on the third in a monetarily big way, so either side could be asking for additional review, or both sides might decide they were better off with their victory. I could certainly see the arguments for each position.

But as a bystander unhampered by any stake in the outcome, I see this as a case where all three are extremely important practical issues,  particularly the second one, where the trial bench and bar really need clear guidance.

Judge Jolly, who dissented from the opinion written by Judge Reavley, joined by Judge Wiener, had the following to say about that issue:

Smith’s entire claim in this case was presented to the jury as pretext. Smith alleged that every reason given by Xerox for her termination was pretext  for age and gender discrimination or, alternatively, pretext for retaliating against her because of her EEOC charge. Smith did not argue or acknowledge that the reasons for her discharge were valid; she argued that the employer’s reasons were pretextual, i.e., false, an illegal sham. And, both with respect to discrimination and retaliation, the jury was instructed accordingly: “If you disbelieve the reason(s) Defendant has given for its decision, [i.e., pretext,] you may infer Defendant terminated Plaintiff because she engaged in protected activity.” In short, if discrimination in an alleged mixed-motive case must be shown by pretext, it is not a mixed-motive case at all, it is a pretext case. It should be that short and simple.

In an important footnote in that paragraph, Judge Jolly noted, "we have long required plaintiffs who ask for a mixed-motive instruction to acknowledge the employer’s legitimate motives for discharge," a requirement now expressly disavowed by the majority.

On the other issue that Judge Jolly took issue with, the applicability of the Gross analysis, he wrote:

The majority disagrees, however, asserting the lame distinction that, although the language is identical, Gross was an age discrimination case under the ADEA and the case today is a retaliation case under Title VII. Given the uniform principle set out in Gross, the majority’s distinction is the equivalent of saying that a principle of negligence law developed in the wreck of a green car does not apply to a subsequent case because the subsequent car is red—a meaningless distinction indeed.

Given the clear divide, and the importance, en banc, please!

Update (4.21.10): En banc review is not going to happen. The most recent entry on the docket sheet is a 4/19 letter to the court transmitting a joint Satisfaction and Release of Judgment filed with the district court on 4/19. That pleading states that Xerox has satisfied the original judgment, less the vacated punitive damages, in the amount of $208,159.03.  Impossible to argue with the business decision, but it is a shame that there is no clarification of the opinion.

Another Retaliation Case in the Supreme Court: Deja Vu All Over Again?

According to Paul Secunda at Workplace Prof Blog, a number of bloggers have already commented on today's granting of certiorari Supreme Court Grants Cert in Saint Gobain FLSA Case.

Paul says he has no idea how the case will come out. The issue is whether as the 7th Circuit says, only written complaints, not oral ones, qualify as protected activity under the FLSA. I think Paul may just being nice.

Consider the following posts on how retaliation has fared in the Supreme Court since the birth of this blog in July 2002.

• Supreme Court Unaminous in Retaliation Case, Crawford v. Metropolitan Government of Nashville (S.Ct. 1/26/09).
•  Supreme Court Scoreboard: Retaliation 2, Employers 0, CBOCS West, Inc. v. Humphrey (S.Ct. 5/27/08) and Gomez v. Potter (S.Ct. 5/27/08).
• Supreme Court Answers the Question: What Is An Adverse Employment Action? , Burlington Northern Railway v. White (S.Ct. 6/22/06)
• Whistleblowing in the Supreme Court, A Good Day,  Jackson v. Birmingham Board of Education (U.S. 3/29/05).

Based on that track record, and the fact that there was a vigorous dissent by 3 judges in the 7th Circuit (including Supreme Court short lister, Judge Diane Wood) to the court's refusal to hear the case en banc, I am not optimistic that the 7th Circuit's holding that only written complaints constitute protected activity will stand.

That's the view of another Paul,  Paul Mollica, at Daily Developments in EEO Law.

If the Court follows its own in lead in its unanimous decision from last term, Crawford v. Metropolitan Government of Nashville, 129 S. Ct. 846 (2009), it will give the statute a common-sense construction that safeguards employees' rights to inquire or complaint about wage-and-hour violations. A decision affirming the Seventh Circuit's construction, though seemingly unlikely, would reverberate in all federal-law retaliation cases.

But left out of the Supreme Court record above is Justice Thomas' decision in Graham County Soil & Water Conservation District v. United States ex. rel. Wilson (U.S. 6/20/05) (see No Federal Statute of Limitations for Retaliation Claims Brought Under Qui Tam Act.)  That just happened to be a case that turned on statutory construction.

And the rest of Professor Secunda's sentence refusing to predict the outcome finishes, "but the decision may be an interesting example of how different Justices engage in the exercise of statutory construction."

So the decision may be more up in the air than I would initially think.

But I doubt it.

Update (3.25.10): For a little more factual background on the case itself check out the article in Corporate Counsel, Sooo, Just Keep My Mouth Shut: Can Workers Only Complain in Writing?

Perception and Third Party Retaliation Claims Still Alive in DC District Court

Ramona Johnson, a Secret Service agent married to a Secret Service Agent, says she was denied a transfer to Miami, where her husband had been moved because he had filed a discrimination charge based on his race.

Johnson alleged the denial of the transfer was retaliation either because of his protected activity (a third party retaliation claim) or because the Secret Service perceived that she had been involved in his charge (the perception claim). Last week she survived a motion for summary judgment with Judge Richard W. Roberts holding (pdf) that there is at least a factual dispute on the perception claim.

Given that there is at least an arguable split in the circuits, discussed by Judge Roberts in his opinion, this could be potential Supreme Court material. Frankly, given how employers have fared in recent years before the Supreme Court on retaliation, I would just as soon not see that happen. 

There's a long road between this ruling (which was really a Motion to Dismiss converted to an early MSJ) and the Supreme Court though.

Hat tip to the DLR for catching this opinion. Their article is here. ($)

Supreme Court Unanimous in Retaliation Case

Today's decision in Crawford v. Metropolitan Government of Nashville (S.Ct. 1/26/09) was certainly not the hardest case for the Supreme Court to decide, nor was the decision unexpected. However, the unanimous holding that an employee who answers a question about a fellow employee's improper conduct during an internal sexual harassment investigation is engaging in protected activity under Title VII re-enforces that this is not a court that is at all interested in reigning in the law of retaliation.

Justice Souter's opinion in fact was quite harsh in characterizing the position of the employer, its amici support and the 6th Circuit panel which wrote the appealed decision, holding "nothing in the statute requires a freakish rule ...."

Justice Alito, joined by Justice Thomas felt it necessary to try to confine Justice Souter's holding by noting in his concurrence:

The question whether the opposition clause shields employees who do not communicate their views to their employers through purposive conduct is not before us in this case; the answer to that question is far from clear; and I do not understand the Court’s holding to reach that issue here.

Justice Alito was concerned about the impact of Justice Souter's words:

And we would call it "opposition" if an employee took a stand against an employer’s discriminatory practices not by "instigating" action, but by standing pat, say, by refusing to follow a supervisor’s order to fire a junior worker for discriminatory reasons.

The case was decided under the opposition as opposed to the participation clause, because the employer's investigation was based on an internal complaint rather than an EEOC charge. Whether that was too limited a view of the participation clause was not addressed by the Court, but given the Court's consistent holdings in retaliation cases, if you were a betting person, you should probably guess that if asked, this Court would say yes it was.

Besides reaffirming that this Court is a firm supporter of protection against retaliation, it also makes it more likely that employers will find retaliation raised in more cases. Employees, suffering an adverse employment action (a burdened lessened three years ago in Burlington Northern v. White) now have a lower burden in claiming that at some point they had "opposed" an unlawful practice.

Although Justice Alito argues that "opposition" still requires more than silence, it is by no means certain that view will ultimately carry the day. And today's decision makes it much more likely that cases presenting that precise question will be forthcoming.

Retaliation, Whistleblowing and Preemption - The Texas Supreme Court Chooses

Although the specific result is that the employee loses, today's Texas Supreme Court's opinion in City of Waco v. Lopez (Tx 7.11.08) (pdf) has something for both sides of the docket. The factual pattern is straight forward. Lopez, a city employee filed an internal grievance complaining a transfer was because of his age and race. He was moved back to his original position, but fired a few month later, allegedly for another offense.

Instead of pursuing a retaliation claim under the Texas Commission on Human Rights Act, Lopez chose to sue based on the general Whistleblower Act (§554.001 et seq.) (It is not clear from the case, but my guess is Lopez may have missed the shorter deadline for filing a charge under the TCHRA.)

The city moved to dismiss, claiming the TCHRA preempted his claim under the Whistleblower Act. Justice Wainwright writing for a unanimous court agreed, finding the more specific statute (the TCHRA) trumped the more general statute (the Whistleblower act). Since Lopez had not filed a charge under the TCHRA, which is a jurisdictional requirement, his claim had to be dismissed.

Although not good for Lopez, the opinion at least puts the Texas Supreme Court on record clearly in support of the "opposition" clause of the TCHRA and for extending its coverage to an internal grievance. Justice Wainwright even mentions in a footnote that the U.S. Supreme Court is currently considering a similar (although not exact) claim in Crawford v. Metro. Gov't of Nashville (Docket 06-1595).

For those who are not familiar with "opposition" and "participation" clauses as those terms are used in the context of statutory retaliation provisions, Lopez provides a good explanation.

The Court also gives some amplification on the local laws provision of §21.151 and the election of remedies provision, §21.211 that are, to be charitable, somewhat confusing:

Section 21.151 is specifically limited to local laws, and Section 21.211 limits the ability to pursue multiple grievances in multiple forums over the same alleged conduct. In the realm of employment discrimination litigation—where federal, state, and local governments individually declare their opposition to unlawful discrimination—Section 21.211 merely means a plaintiff cannot file an administrative complaint with the CHRA after having already (1) filed a lawsuit under a federal or local anti-discrimination measure covering the same conduct or (2) begun administrative proceedings with the EEOC or local enforcement entities based on the same conduct.

I can see the Court's 2nd proviso on what §21.211 means leading to some interesting issues related to the timing of the filing of TCHRA claims if they are not jointly filed with an EEOC charge.

While the Court makes clear that it is only deciding the interaction between the TCHRA and the general public whistleblower statute, the discussion of the importance of requiring compliance with the detailed procedures of the TCHRA bodes well for any other employer that has the option to argue for preemption of some other statute where there is an overlap.

One style note, in his opinion Justice Wainwright uses the acronym (CHRA) [Commision on Human Rights Act]. I have always used the longer (TCHRA) [Texas Commission on Human Rights Act). In a quick check of prior Supreme Court usage, before today's opinion it appears to have been TCHRA 8, CHRA 4.

5th Circuit View on Retaliation Under the FLSA

No question that FLSA is the hot topic labor and employment circles these days, although most of that attention is focused on collective actions. Last week, the 5th Circuit took up another area, one of those rare cases of "first impression" -- what constitutes retaliation under the "complaint" portion of the anti-retaliation statute in the FLSA. Hagan v. Echostar Satellite LLC (5/30/08) [pdf].


That section of the FLSA provides it is illegal for an employer to:

discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this chapter, or has testified or is about to testify in any such proceeding, or has served or is about to serve on an industry committee.

The case reached the Court on an appeal by a discharged employee. The trial court granted a direct following a mistrial. The employee, a supervisor, claimed the protected activity was his passing to the human resources department a question from the technicians he supervised about whether a change in policy that would lead to less overtime was legal. Since he was terminated for the way he handled the implementation the new practice whether that action was "protected activity" was crucial.


The district court made three legal findings before applying them to the facts:

1. "even an informal, internal complaint could constitute protected activity under the FLSA,"


2. in order to be protected employee the employee must have “stepped out of his role as an Echostar field service manager, either to complain to his employer in behalf of the technicians, or in his own behalf, about a supposed violation or irregularity under or related to the FLSA,"


3. and that the FLSA "protects employees engaged in otherwise protected activity if that employee possesses a good faith belief that the employer had violated the law."

The 5th Circuit, in an opinion joined by one of its newer members, Judge Leslie Southwick, noted that the 2nd Circuit had taken a more restrictive view than the district court did and would not extend FLSA protection to informal complaints. It refused to take that view, instead going with the district court and what it viewed to be the majority rule in other courts. It did note that it was important that the complaint be about the legality of an action.

The Court also accepted the district court's 2nd premise, that the employee must be doing something other than his job, here being an intermediary between his employees and human resources, which was one of the functions of a manager. A different holding would otherwise mean a whole class of employees, managers, hr and legal, would be protected for just doing their job.

The Court found givenn that Hagan could not meet either of the first two principles, it did not need to address the good faith argument and so, in an appropriate act of judicial restraint, it did not.

I don't think this case represents a land mark shift in the 5th Circuit's view of employment cases generally, but I do think it is an indicator that it is not now a court that automatically looks for the most harsh outcome for employees, if in fact it ever was. Although here the employee lost, the standard which the Court articulates for the first time seems to be a clearly correct and mainstream, as well as less employer friendly than at least one of its sister circuits.

Supreme Court Scoreboard: Retaliation 2, Employers 0

Today the Supreme Court issued two employment related decisions -- holding that there is a cause of action for retaliation under 42 USC § 1981, CBOCS West, Inc. v. Humphrey (S.Ct. 5/27/08) and that federal employees who claim age discrimination are also protected against retaliation for doing so, Gomez v. Potter (S.Ct. 5/27/08).

It is hard to be too surprised by CBOCS West. Although § 1981 does not mention retaliation, in light of the Supreme Court finding retaliation under Title IX in the same circumstances three years ago, see Whistleblowing in the Supreme Court,A Good Day, it would have been more surprising if the decision had gone the other way.

Pile on top of that the unanimity in agreeing that § 1981 prohibited retaliation by all the appeals courts which had decided the question and the impact is negligible, except in the sense of one that employers thought might help, got away. Perhaps more interesting is that the two justices who were not around for the Title IX decision, C.J. Roberts and J. Alito, were aligned with the 7 person majority and J. Kennedy switched his view, leaving only J. Thomas to dissent, joined by J. Scalia.

The basis for the decision emphasized by Justice Breyer -- stare decisis. An argument that J. Thomas was less than enamored with:

Unable to justify its holding as a matter of statutory interpretation, the Court today retreats behind the figleaf of ersatz stare decisis. The Court’s invocation of stare decisis appears to rest on three considerations: (1) Sullivan’s purported recognition of a cause of action for retaliation under §1982; (2) Jackson’s (re)interpretation of Sullivan; and (3) the Courts of Appeals’ view that §1981 provides a cause of action for retaliation. None of these considerations, separately or together, justifies implying a cause of action that Congress did not include in the statute. And none can conceal the irony in the Court’s novel use of stare decisis to decide a question of first impression.

If as many think, there is a strong possibility that the next Congress will do away with the statutory caps of Title VII, today's decision in CBOCS West would be of even less importance, just a timing blip. What may be of longer term significance is the 7-2 majority, which was the same in both cases and the Court's view on the importance of stare decisis.

The first is significant to employers in contemplating how employment decisions may fare at the Supreme Court level in light of the 7-2 alignment. The second -- the view of stare decisis, given its potential impact on Roe v. Wade may well be the most significant thing to come from this decision.

Update: Mea culpa. The breakdown on the decision in Potter was not 7-2, but 6-3 with C.J. Roberts actually writing the dissent. Although since it was about federal employers, I just skimmed the decision, I should have been much more careful in what I wrote. Probably many of my fellow commentators caught it, but the first that I read that jumped out at me was Brian Peterson's post at the West Virginia Legal Weblog. Although it's not quite as good a story maybe as the 7-2 alignment in both cases would have been, perhaps it is as significant that J. Alito was actually the author of Potter majority opinion. And even better, it's accurate.

Why You Have to Be Careful When Reading Blogs - Retaliation Claims Not Really in Danger in the Supreme Court

When you have a blog entitled Jottings By an Employer's Lawyer, it is pretty clear that you write with a viewpoint. Nevertheless, I try hard to make sure that what I write is accurate, and separate what is opinion from what actually is. No doubt that in the more than 1500 posts since this blog began five years ago, I have not achieved that goal 100%.

Diversity, Inc. also has a viewpoint, and I am sure most of their posting are accurate, but a recent one, No More Discrimination Lawsuits? Supreme Court May Make It Easier to Retaliate, seems to be unnecessarily off the mark.

The basis for the article is the Supreme Court's granting of certiorari in CBOCS West, Inc. v. Humphries (06-1431) and it links to Ross Runkel's page with his description and links to the key documents.

Here's what the article says about the possible effects of the Supreme Court decision:

Should the Supreme Court side with CBOCS West, it would become easier for companies to retaliate against workers who file discrimination lawsuits. This would discourage many from disclosing illegal discriminatory practices.

While perhaps technically true, when combined with the following statements:

Federal law includes "retaliation against an individual for filing a charge of discrimination, participating in an investigation, or opposing discriminatory practices," according to the U.S. Equal Employment Opportunity Commission (EEOC).

In 2004, the EEOC received 22,740 charges of retaliation discrimination and recouped more than $90 million in monetary benefits.

it vastly overstates the potential significance of the case and I think unfairly castigates the Supreme Court.

A decision in CBOCS would have no impact on retaliation cases under Title VII of the Civil Rights Act of 1964, which are the the types of charges mentioned in the two quoted paragraphs and by far the vast number of retaliation claims brought in discrimination cases.

If the Court finds no retaliation is available under § 1981, it would only impact retaliation cases brought under that statute which is limited to racial claims, and basically parallels Title VII race claims with three key exceptions -- there are no statutory damage caps, a much longer statute of limitations and no administrative prerequisites.

Still the implication that retaliation law in discrimination cases is at grave risk, is a real stretch.

The case is an interesting one however as the Supreme Court will have to deal with the Title IX decision of two years ago authored by Justice O'Connor, where four of the justices felt the majority clearly exceeded the scope of the Congressional mandate to create a retaliation cause of action out of whole cloth. See my discussion at Whistleblowing in the Supreme Court, A Good Day .

I do agree with the writer of the article that it is quite likely that the outcome will be different here given the switch from O'Connor to Alito, but I don't think it is really fair to imply it is because of a hostility to retaliation claims by the present Supreme Court. Especially given that it was the Roberts court, including Justice Alito who wrote the other case which is referenced* in the article as broadening the protection provided by the retaliation provision of Title VII.

Blogs are helpful, but all of them, including this one, should be read carefully to make sure that any particular post is not one that may have missed the mark.

*The article says, "Last June, the Supreme Court enhanced protections for employees on the basis of retaliation under Title XII (sic) of the Civil Rights Act of 1964 ..." I believe that is referring to the Burlington Northern Railway v. White decision of June, 2006. See my post about that decision here.

Discrimination Survives, Retaliation Fails - 5th Circuit

We have become so use to talking about cases where an employer wins the discrimination claim but loses on retaliation that it is almost shocking to see the reverse. But that's one of the "great things" about employment law — almost anything can happen.

Which is probably what the folks at Dr. Pepper are thinking after reading today's opinion from the 5th Circuit in Burrell v. Dr. Pepper/7 Up Bottling Group (5th Cir. 3/20/07) [pdf].

When Burrell was passed over for the position as Vice President of Purchasing, even though having served well as what the 5th Circuit called the "stopgap vice president" until a new VP was brought on board, he felt as if perhaps the decision was based on his race.

In fact he shared with his superior a copy of the book, Roberts v. Texaco: A True Story of Race and Corporate America, and two articles detailing the class action lawsuit brought against Coca Cola, saying he felt his experiences at Dr. Pepper mirrored those of the plaintiffs in those cases. Still he continued with the job, earning not only a raise, but a bonus and an invitation to an annual meeting of high achieving employees.

But when the new VP arrived, so did problems between the two of them. It culminated in a lengthy review of Burrell's performance, done at his request, to which he wrote a lengthy 3 page rebuttal. According to the 5th Circuit:

The performance evaluation response authored by Burrell begins by characterizing Koester's [the new VP] initial evaluation as an inappropriate and unprofessional attack and questions Koester's ability to give an accurate evaluation. The response goes on to attribute the negative review to Koester’s “biased perception” of Burrell’s on-the-job performance. Throughout his response, Burrell accuses Koester of being ill informed and unqualified to critique his performance.

While the response includes significant supporting facts and examples, Burrell made clear his lack of respect for Koester's authority, asserted no responsibility for their bad relationship, and made no provisions for future changes. Both the evaluation and the response demonstrate the failed working relationship between Burrell and Koester. Notably, neither document contains any mention of a racial or retaliatory basis for their disagreements.

On the same day that rebuttal was delivered, Burrell was terminated.

In the suit that followed, the district court granted summary judgment for Dr. Pepper on both the discrimination claim for failing to select Burrell as the new VP of Purchasing and retaliatory termination for his protected activity.

Today's result — summary judgment on retaliation, affirmed; summary judgment on discrimination on the promotion claim, reversed.

Although the result — retaliation losing, while discrimination wins - is unusual, more attention will probably be directed to the discrimination claim as the Court explains what it was that led it to believe that Burrell had established a triable issue on pretext. The Court gives its views of how the evidence, including what it believed to be shifting explanations for the hire, gave rise to a triable issue of fact.

One thing that caught my eye is the importance the court attributed to consistency of the company's explanation:

While Dr. Pepper offers an explanation for the difference between the reason for promoting Koester over Burrell it offered to the EEOC (“purchasing experience”) and the one offered to this court (“purchasing experience in the bottling industry”), its brief does not attempt to explain how either explanation is consistent with its arguments to the district court which were framed in terms of Burrell’s insufficient “bottling” experience.

Although you can see the difference, there is also a lot of similarity in those three phrases:

• purchasing experience,
• purchasing experience in the bottling industry,
• Burrell’s insufficient “bottling” experience

While the Court gives additional reasons for its holding, when you consider the number of times that you could be potentially be called upon to explain the reason for a termination -

• to the employee,
• unemployment proceedings,
• EEOC or state agency,
• district court pleadings and discovery
• and appellate briefing

the potential chance of damage caused by a lack of precision or a subtle change of emphasis are enough to get an employer's attention.

While Burrell's discrimination claim may still be alive, it is not to say it didn't take a hit as well. Given a now legitimized termination, it would seem at a minimum that even assuming that liability could be established, which of course is by no means certain, a large element of economic damages, would seem to have gone disappeared along with the retaliation claim.

Failure to Rehire As Retaliation

An employer who is sued by an employee is usually less than happy about seeing that same employee file for re-employment. It does seem asking a lot of human nature to assume that following a course of litigation all feelings can be put aside and "let bygones be bygones." On the other hand, filing a lawsuit is often clearly within the statutory definition of protected activity.

The real world answer is that most employees who have had to go to the trouble of suing a former employer are often not that interested in returning either. But it does happen, although as the 1st Circuit noted in Velez v. Jannsen Ortho, LLC (1st Cir. 11/3/06) [pdf], "claims of retaliation in the failure-to-hire context are sufficiently rare that this question is one of first impression for this court."

In Velez, the lower court granted summary judgment on two grounds. First it found bringing the first law suit unreasonable so it lost its protected status; or alternatively, it it was protected, the plaintiff had failed to show a causal connection between filing the first lawsuit and not being rehired. The 1st Circuit affirmed, but on more narrow grounds.

It did not address the reasonableness of the first lawsuit, and found the trial court's reliance on causation "awkward at best." Instead it focused on the generalized nature of her "application." The plaintiff had merely written letters expressing a desire for any position that HR considered her suited for.

The 1st Circuit demanded more setting up the prima facie test in a retaliatory failure to hire case as

1. she applied for a particular position,
2. which was vacant,
3. for which she was qualified, and
4. that she was not hired for that position.

It explained its rationale:

This specificity requirement is sensible and fair. An open-ended request for employment should not put a burden on an employer to review an applicant's generally stated credentials any time a position becomes available, at the risk of a Title VII claim.

Makes sense to me.

6th Cir. Hands EEOC a Setback in Release War

One area of recent contention has been fights over employer's releases -- do they comply with the OWBPA, or worse, are they themselves retaliatory. That's the tact the EEOC took with respect to a severance agreement utilized by an employer that not only asked for a release of claims but also barred the employee from filing any administrative claims, including an EEOC charge. If a charge was filed after signing the release, the employer was entitled to the return of the severance payment.

The trial court granted summary judgment to the EEOC which argued the release was retaliatory on its face, calling it a “preemptive strike against future protected activity.” Disagreeing, the 6th Circuit in a 2-1 decision found while the bar on filing the charge was not enforcible, it was not on its face retaliatory. Probably realizing the complexity of the issues (not to mention the real world impact), the Court emphasized, the narrowness of its ruling:

SunDance’s mere offer of the SeparationAgreement does not amount to retaliation under ADA, ADEA, EPA, or Title VII, either as a facialviolation of those statutes’ antiretaliation provisions or under the conventional burden-shiftinganalysis. SunDance has not tried to enforce the Separation Agreement, and the question of theenforceability of the Agreement or any of its provisions is not before us.

EEOC v. Sundance Rehabilitation Corp. (6th Cir. 10/24/06) [pdf].

The dissent thought that the majority opinion was drawing too fine a line:

The majority in effect says that an employee who believes he or she has an EEOC enforceable claim or at a minimum is willing to testify in an EEOC enforcement action should sign the agreement, take the money and then go forward with the EEOC. If SunDance sues for a return of the severance pay, then the defense of retaliation should be raised and may carry the day. Any act by an employer which interferes with or chills a protected right is, I believe, contrary to public policy and in violation of the anti-retaliation provisions of the several statutes involved.

Most releases, at least in the 5th Circuit which has long held such requests are void as against public policy, make it clear that they do not bar filing a charge of discrimination with the EEOC. Today's opinion does nothing to change the wisdom of that approach.

Given the subject matter and the EEOC's position, I doubt this is the last word on this issue and maybe not even on this case.

1st Circuit Notes Qualifiers on Burlington Northern v. White

Discussing the recent Supreme Court decision in Burlington Northern v. White, the 1st Circuit noted that it did not make a difference in the case before it, Carmona-Rivera v. Commonwealth of Puerto Rico (1st Cir. 9/12/06). The case involved a school teacher with a disability who complained not that her disability had not been accommodated (she did get her own private bathroom), but that it had taken too long. Her argument that the delay itself was retaliation fell on deaf ears, the court finding it nothing more the type of action "inherent in the workings of an educational bureaucracy."

The court also noted the qualifying factors in White:

The alleged retaliatory action must be material, producing a significant, not trivial, harm. Id. Trivial actions such as "petty slights, minor annoyances, and simple lack of good manners will not [normally] create such deterrence." Id. "Context matters," and "the standard is tied to the challenged retaliatory act, not the underlying conduct that forms the basis of the Title VII complaint." Id. at *11. While White slowly works its way into the consciousness of the courts, so far, nothing dramatic .... yet.

Did Burlington Northern Make the Difference?

At least at the circuit level there has still not been a lot of activity following the Supreme Court's decision earlier this summer in Burlington Northern v. White. The 2nd Circuit has now addressed Burlington Northern at some length in Kessler v. Westchester County of Social Services (8/23/06) [pdf], but it is not clear that it changed the outcome.

Kessler was an Assistant Commissioner of Social Services. Following his complaints of religious discrimination he was transferred from the White Plains to Yonkers. His law suit was dismissed on summary judgment with the district court finding that there was no adverse employment action since it was a lateral transfer in terms of pay.

The 2nd Circuit focused more on the change of duties.

Whereas he previously "ha[d] overall responsibility for policy formulation, resource allocation, planning and evaluation of programs and procedures, financial and personnel management", in Yonkers he no longer had any such responsibilities. Whereas he had been "[u]nder the general direction of the Commissioner of Social Services or Deputy Commissioner", he no longer reported to them but instead reported to a supervisor whose grade level was no higher than his. Whereas his job had been to "function[] as part of the top management of the Department", he was no longer given any managerial assignments and was not even allowed to attend meetings of lower-level managers. Whereas he had "[s]upervis[ed] . . . a large number of managerial, professional and clerical support staff", upon his transfer to Yonkers he in fact was allowed to supervise no one. He was required to undertake clerical tasks and to perform data entry alongside employees several grades below his.

Although quoting several of its prior decisions where transfers with loss of duties had been sufficient to constitute a materially adverse action, the Court not only discussed the Supreme Court's decision at some length, but gave a nod to it as making a difference -- noting the plaintiff challenged the district court's determination that he had not suffered an adverse employment action, writing: "In light of the Supreme Court's decision in Burlington Northern & Santa Fe Railway Co. v. White, 126 S. Ct. 2405 (2006) ("White"), rendered subsequent to the district court's decision in this case, we agree."

Applying the new test, the Court held:

A rational factfinder could permissibly infer that a reasonable employee in the position of DSS Assistant Commissioner could well be dissuaded from making a charge of discrimination if doing so would result in a transfer to an office in which, inter alia, he would not be allowed to perform the broad discretionary and managerial functions of that position, no one would report to him, and he would be forced to do work normally performed by clerical and lower-level personnel.

Notwithstanding the nod to Burlington Northern, it is not clear that it was outcome determinative in this case. But in the 5th Circuit, which had the now rejected "ultimate employment action" test, the Court has sent at least two summary judgment dismissals back to the lower courts for review under the new standard. Clearly at least in some locales it will make a difference.

First Burlington Northern v. White Reversal

The 6th Circuit becomes the first appellate court I am aware of to cite the recent Supreme Court decision in Burlington Northern v. White in reversing a summary judgment in a retaliation case on the element of "adverse, retaliatory action." Randolph v. Ohio Department of Youth Services(6th Cir. 7/13/06)[pdf].

Here the complaining employee was first suspended, then terminated, but later reinstated with 70% backpay. The district court had held this did not rise to the level of an actionable adverse action.

It is fitting that the 6th Circuit got to be the first to use Burlington Northern since it was the court from which the case came. Still today's decision is not that big a deal, since the 6th Circuit in its own Burlington Northern opinion had held that termination, with later reinstatement at 100% backpay was an actionable adverse action. Thus the Supreme Court decision did not alter the result. The more important first use of Burlington Northern will be the case where the ultimate outcome is changed by the Supreme Court's action -- that decision is forthcoming -- stay tuned.

If You've Ever Been Taken to Task By Judge Posner ...

Then you will have to appreciate his opinion in Sylvester v. SOS Children's Villages Illinois, Inc. (7th Cir. 7/12/06) where in re-examing the prima facie test for retaliation he turns his sometimes caustic pen to an earlier opinion from his own court. The opinion in Stone v. City of Indianapolis Public Utilities Division, 281 F.3d 640, 644 (7th Cir. 2002), had a special purpose:

We limit this published opinion to a question on which clarification is needed. It is the proper standard for summary judgment when a plaintiff claims that he was retaliated against for complaining about employment discrimination.

In re-examining the test for retaliation he now notes that Stone contains "misleading dictum," which fortunately the Court in a number of other opinions had "sensibly disregard[ed]."

Rather harsh language about a fellow jurist it seems -- until you remember -- the author of that clarification in Stone was none other than -- Judge Posner.

In addition to that irony, if you practice in the 7th Circuit you need to review today's updated clarification as it may indicate at least a subtle shift in the Court's test for reviewing summary judgments in retaliation, and in all likelihood, discrimination cases as well.

Burlington Northern v. White -- The Day After

It will be more important to see how the courts react than the lawyers and the press, but it hasn't taken long for the latter to start predicting dire results for employers as a result of yesterday's Supreme Court ruling. A sampling of headlines and quotes:

• From the Houston Chronicle quoting plaintiff's lawyer Andrew Golub: "Golub said employers now face the potential of having to go to trial over the 'little things' like moving complaining employees from a corner office to a cubicle, putting them on the graveyard shift or even taking away their coffee breaks." Ruling widens ability to sue. [Not quite what the Court said when it emphasized the importance of distinguishing the trivial from the significant.]
• "The high court chose the most employee-friendly standard, lawyers on both sides agreed." High Court Widens Protection for Workers Against retaliation. Chicago Tribune. [Not correct, the Court rejected a more liberal standard advocated by EEOC and utilized by the 9th Circuit.]
• "Employees who have discrimination complaints often cry retaliation," said Mimi Moore, a management lawyer in Chicago. "And now they will have a much better chance of getting their cases before a jury." Ruling protects workers from retaliation Firms can't punish employees who file bias complaints, San Francisco Chronicle. [Interesting because arguably the law is now tougher for employees in the 9th Circuit, where the San Francisco Chronicle is published, than it was before yesterday's ruling.]
• However Ms. Moore was also quoted as saying the ruling might not be such bad news for employers, ""Employers now know that there is an objective standard that has to be met for someone to succeed in a retaliation claim," she said, noting that workers could not now claim that "trivial" actions constituted retaliation. US workers win more power in job discrimination lawsuits, MSNBC.
• "Now, many retaliation cases that had previously been dismissed are likely to go to trial. That will encourage lawyers for alleged victims to take on more cases, and, accordingly, raise companies' costs for lawyers and defensive management practices." Court makes it easier for workers to sue. Seattle Times [Undoubtedly a true statement, that will be made even more so by reports overstating the wording of the decision.]
• "This is an exceptionally important decision that changes the law in most of the country," Eric Schnapper, a law professor at the University of Washington who helped represent the plaintiff in the case, said in an interview. Supreme Court Gives Employees Broader Protection Against Retaliation in Workplace. New York Times.
• And from the even when they win, they still have to get in their shots department - "How rightwing is the Bush administration when it argues to screw workers on behalf of corporate American-- and even Scalia and his rightwing brethren reject its position? In a sea of worsening legal doctrine on discrimination, the Supreme Court just handed down a decision, by a 9-0 vote, that clearly protects employees who demand that their employers end discrimination in the workplace from any kind of retaliation. ....
  "I should say that while the decision is officially 9-0, on some parts of the decision, it was 8-1 with Alito taking a more rightwing position of limiting what would count as retaliation, limiting it to economic losses by plaintiffs and giving employers a free ride to punish employees in all sorts of non-economic ways. So Alito may be making his bid to become the wingnut holding up the right pole of the Court. "BIG Win for Employees at Supreme Court, by blogger Nathan Newman.

From this employer's lawyer's perspective -- Burlington Northern v. White is clearly a substantial development that any employer must take into account -- but let's wait for the courts, the only group who's opinion really matters, to weigh in before hitting the panic button.

It's also a reminder to be careful what you ask for -- for all contemplating how bad this is for employers, remember who asked the Supreme Court to consider the question.