Business Management Daily



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)

dadams@

gyund@

James C. Dale

Stoel Rives LLP

101 S. Capitol Boulevard, Suite 1900

Boise, ID 83702-7705

208.387.4282

208.389.9040 (fax)

james.dale@

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.

COMMON SOURCES FOR RETALIATION CLAIMS

1 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.

2 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.

3 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]

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.

1 Protected Activity.

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 reasonably believes 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.

2 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 against her 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.

3 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. E.I. Dupont De Nemours and Co., -- F.Supp.3d --, 2016 WL 4258927 (D. Del. Aug. 11, 2016).

▪ Employee alleged age and disability discrimination as well as retaliation. He had been diagnosed with PTSD.

▪ Employee’s anger management issues led to several verbal altercations with co-workers. Employee alleged that his co-workers made ageist remarks to him, either as a result of the altercations or causing them.

▪ After one particularly heated exchange, Employee reported the incident and a number of past incidents, saying that his co-workers were targeting him because of his age and his PTSD condition. HR told him his anger was the primary cause and there were things he could do to control it. Employee denied it was the cause.

▪ After a thorough investigation of all the confrontations of which Employee complained, the Company determined Employee was at fault and ended his employment.

▪ The court held that the closeness in time between his complaints and the subsequent investigation and termination was enough for Employee to establish a prima facie case of retaliation.

▪ Allen v. TV One, 2016 WL 337533 (D. Md. Jan. 28, 2016).

▪ CEO’s mother harassed Employee by asking Employee when she was going to marry CEO and insisting Employee would be her daughter-in-law.

▪ Employee complained of the harassing behavior to HR, but was terminated just three days later.

▪ The court held Employee’s oral and written complaints constituted protected activity and there was sufficient temporal proximity to find a causal link.

▪ Mink v. Passport Health Communications, Inc., 2013 WL 4008705 (M.D. Tenn. Aug. 5, 2013).

▪ Employee complained of harassment by supervisor. Supervisor was censured and transferred. Five years later, Employee returns to alleged harasser’s supervision. Supervisor begins criticizing, loading on extra work and eventually recommended termination. Court held causation was possible despite 5-year gap where supervisor was not in a position to retaliate for most of that period.

▪ Disparate treatment.

▪ Wheat v. Florida Parish Juvenile Justice Commission, 811 F.3d 702 (5th Cir. 2016).

▪ Employee asserted Title VII and FMLA rights. Later, Employee, a juvenile officer, was terminated for physically assaulting a juvenile. At that time, Employer claimed she was terminated because “No JDS officer had ever physically attacked a youth resident before.”

▪ Employee offered evidence that other employees had been violent toward juveniles, but had not been fired. Employer then offered a second explanation, stating her “violent attack on a youth resident…gave the Commission compelling grounds to fire her to protect the health and safety of the youth residents.”

▪ Based on this inconsistent treatment and shifting justification, the court found there might be sufficient evidence of a causal link between Employee’s protected activity and her termination.

▪ Gesinger v. Burwell, -- F.Supp.3d --, 2016 WL 5478380 (D.S.D. Sep. 28, 2016).

▪ Employee, a nurse, filed a charge of discrimination with the EEOC, alleging hostile work environment and constructive discharge. An Administrative Law Judge entered an order to return Employee to work.

▪ Employee alleges all the terms of the ALJ’s order were not followed and that, further, she was treated differently than her co-workers when she returned to work. Specifically, she alleged she was denied access to rooms storing patient medication, a privilege afforded her fellow nurses.

▪ The court found the denial of access to patient medication rooms when compared with access afforded Employee’s co-workers supported an inference of causation.

▪ Bartlette v. Hyatt Regency, -- F.Supp.3d --, 2016 WL 5374079 (D.D.C. Sep. 25, 2016).

▪ Employee was not disciplined or suspended in his twenty-year career with the hotel prior to making complaints of discrimination. Shortly after making complaints of discrimination and abusive treatment, he received his first discipline and was later terminated. The court found the twenty-year paucity of discipline prior to his complaints supported an inference of a causal link.

2 Examples when courts have NOT found a causal link:

▪ Same actor giveth and taketh away.

▪ Heggemeier v. Caldwell County, Texas, 826 F.3d 861 (5th Cir. 2016).

▪ Employee, a white male assistant district attorney, complained that the County’s health insurance policy violated the ADEA.

▪ One month later, the County Commissioners Court promoted him to the newly created role of County Administrator.

▪ Two years later, the Commissioners Court discharged Employee as well as a Hispanic employee. Employee was given no severance pay but the Hispanic employee was.

▪ The court rejected Employee’s reverse racism and ADEA retaliation claims. The same Commissioners Court that discharged him had also given him a promotion. Moreover, the promotion was made after he made the complaint about the County’s health insurance policy. Without more, there was insufficient evidence to demonstrate a causal link.

▪ Insufficient temporal proximity and a different decision-maker.

▪ Wiest v. Tyco Electronics Corp., 812 F.3d 319 (3rd Cir. 2016)

▪ Employee reported suspected securities fraud violations and engaged in a self-proclaimed “anguished field battle” during which he refused to process payments he believed were unlawful.

▪ Eight months later, Employee was terminated for making inappropriate sexual comments to multiple co-workers and having inappropriate sexual relationships with subordinates.

▪ The court held Employee’s report was not the causal link. The termination occurred eight months later, and he was terminated by an HR director who had no involvement with the report or its investigation.

▪ Temporal proximity not enough.

▪ Witham v. Intown Suites Louisville Northeast LLC, 815 F.3d 260 (6th Cir. 2016).

▪ A hotel general manager got into a physical confrontation with a non-guest complaining about a vending machine. After viewing security footage of the incident, the company’s general counsel and CEO placed her on suspension. After a holiday weekend, the general manager called to request a workers’ comp claim number claiming she’d been injured in the confrontation. On that same day, she was fired.

▪ Her claim for workers’ compensation was dismissed. That the decisionmakers knew the general manager had filed a workers’ compensation claim does not mean they discharged because of that.

3 Cling to Your Honest Belief.

▪ Hartman v. Dow Chemical Co., 657 Fed. Appx. 448 (6th Cir. Aug. 16, 2016).

▪ Administrative assistant to an attorney and a paralegal took FMLA leave for surgery. Her bosses questioned need for leave extension and began monitoring arrival/departure times. A month after her return to work, the attorney emailed the employer’s supervisor “Do we have enough to take action. Please?” The supervisor’s review of time records revealed discrepancies. The admin was fired for timecard fraud. She sued for FMLA retaliation and won $172,000 in a jury trial. The employer won reversal on the ground that the attorney e-mail was not linked to FMLA and that there was no indication that the employer ignored attendance problems before the FMLA leave.

4 Beware the Cat’s Paw.

▪ In Staub v. Proctor Hospital, 131 S. Ct. 1186 (2011), the Supreme Court held that a decision made by a decision maker with a pure heart can still be unlawful if based on the recommendations of those with retaliatory/discriminatory motives.

Who Can sue AND FOR WHAT?

1 The Victim of Retaliation Need Not Have Engaged in Protected Activity.

In Thompson v. North American Stainless, 562 U.S. 170 (2011), the Court held that an employee fired after his fiancé filed a discrimination complaint against their employer with the Equal Employment Opportunity Commission (“EEOC”) could sue the employer for retaliation under Title VII because “a reasonable worker might be dissuaded from engaging in protected activity if she knew that her fiancé would be fired.” Id. at 3. The Court acknowledged the employer’s argument that “prohibiting reprisals against third-parties will lead to difficult line-drawing problems concerning the types of relationships entitled to protection.” Id. at 4.

Although declining to identify a fixed class of relationships for which third-party reprisals are unlawful, the Court did note that firing a close family member will almost always constitute prohibited retaliation, whereas inflicting a milder reprisal on a mere acquaintance will almost never constitute prohibited retaliation. Id. at 4. In determining whether an employer action rises to the level of prohibited retaliation, “the significance of any given act of retaliation will often depend upon the particular circumstances.” Id. at 4 (quoting Burlington N. & S.F.R. Co. v. White, 548 U.S. 53, 69 (2006)).

The Court next concluded that Title VII gave the plaintiff a cause of action because he fell within the “zone of interests” protected by Title VII. Id. at 7. The employer intended to harm the employee who filed the discrimination complaint by firing the plaintiff. Id. He therefore fell within the “zone of interests” protected by Title VII and had standing to sue. Id.

The Court did recognize limits to third-party plaintiffs’ rights under Title VII. The plaintiff’s interests cannot be marginally related to or inconsistent with the purposes implicit in the statute, and must not extend the constitutional limits of permissible standing. Id. at 6.

Additional examples of third-party claims:

▪ “Very close friends.”

▪ E.E.O.C. v. Fred Fuller Oil Co., Inc., 2014 WL 347635 (D. N.H.).

▪ The plaintiff was permitted to pursue a retaliation claim even though she did not personally engage in protected activity, because her “very close friend” did.

▪ The court allowed the retaliation claim to proceed even though the two were not close family members, recognizing it “could not say that such a friendship definitely supports a successful claim” but also that it could not say as a matter of law that it did not.

▪ No relationship.

▪ Kastor v. Cash Exp. Of Tenn., LLC, 77 F.Supp.3d 605 (W.D. Ky. 2015).

▪ Plaintiffs, Kastor and Nevitt, were store managers at different locations working for the same company. After Kastor took FMLA leave, her manager terminated her based on a prior misdemeanor drug conviction. Kastor retained counsel alleging retaliation under the FMLA and pointing to another employee who also had a DUI but was not fired. The letter did not mention names, but Kastor claims she was referring to Nevitt.

▪ About one month later, Nevitt was terminated based on her prior felony conviction. Nevitt alleged she was really fired after the company realized she would be a harmful comparator in Kastor’s suit.

▪ The court concluded that both Kastor and Nevitt had valid third-party claims:

▪ The court held a reasonable employee in Kastor’s position might be dissuaded from taking FMLA “if she knew that, after exercising her rights, [the company] would try to sabotage her efforts at bringing a lawsuit by firing the person she identified as a comparator.”

▪ Likewise, the court reasoned that Nevitt was in the zone of interested because even though she did not request the FMLA leave, she was fired after being identified as a possible comparator.

2 Retaliation Can Be Non-Workplace Related.

In Burlington N. & Santa Fe Ry. Co v. White, the Court resolved disagreement on two aspects of retaliation claims under Title VII. 548 U.S. 53 (2006):

1) A retaliatory action does not have to affect the terms and conditions of the plaintiff’s employment.

2) To reach the level of severity required for the employer’s conduct to be actionable, the conduct must be “materially adverse to a reasonable employee or job applicant.”

▪ It must be harmful enough that it “could well dissuade a reasonable worker from making or supporting a charge of discrimination.”

The Court recognized that, prior to Burlington, the standard employed in determining whether actionable retaliation had occurred varied considerably by circuit.[8] Id. at 60.

Examples of non-workplace related retaliation:

▪ A negative job reference made in response to an employee’s filing of an EEOC charge can establish retaliation under Title VII. Sims v. Coosa County Bd. of Educ., 99 FEP 519 (M.D. Ala. 2008).

▪ The information in a negative employment reference must be false to constitute an adverse action. Matthews v. Wisconsin Energy Corp., 534 F.3d 547, 559 (7th Cir. 2008).

▪ Lawsuits, unrelated to the conduct surrounding an employee’s protected activity, have also been found to be adverse action. See, e.g., EEOC v. Custom Cos., 99 FEP 519 (N.D. Ill. 2006).

▪ A defamation action against the employee can constitute adverse action under Title VII. Spencer v. International Shoppes, Inc., 108 FEP 1703 (E.D.N.Y. 2010).

▪ Threats to damage non-workplace relationships through false rumors and to oppose an employee’s unemployment compensation claim have also been found to be adverse action. In Williams v. W.D. Sports, 497 F.3d 1079 (10th Cir. 2007).

PRACTICAL ADVICE - HOW TO AVOID RETALIATION CLAIMS

1 Adopt Policies Making Work Rules Clear and Unambiguous.

1 Strong statement affirming the importance of equal employment opportunity in the workplace.

2 Put forth strong prohibitions of retaliation in all policies with respect to non-discrimination, whistleblowing, and harassment prevention.

3 Make sure employees receive clear notice of the procedures for reporting retaliation independent of how to report discrimination or other concerns.

4 Investigate promptly and fairly all claims of retaliation – share the results with the complaining employee.

5 Train managers with respect to anti-retaliation obligations.

6 Include procedures and retaliation protections for reporting illegal activities in Corporate Codes of Conduct with multiple reporting avenues.

2 Be Appropriately Aware of Potential Retaliation Plaintiffs.

1 Grievants.

2 Charge Filers.

3 Litigants.

4 Witnesses.

5 Protestors.

6 “Insubordination” based on legal concerns.

7 Follow up with complainers.

3 Careful Review of Disciplinary Decisions.

1 Make sure that the reasons for discipline are clearly understandable and defensible.

2 Consider whether the punishment fits the crime.

3 What does the personnel file show?

4 Is the discipline consistent with that meted out to non-complaining employees?

5 Consult with higher management, human resources and counsel, if appropriate.

4 Counsel Managers on Dealing with Potential Plaintiffs.

1 Emphasize the importance of getting emotions under control.

2 React calmly to any provocations.

3 Avoid:

1 Over-monitoring and/or criticizing performance.

2 Transferring complaining employees to worse jobs or assigning unpleasant duties.

3 Denying earned benefits.

4 Failure to manage altogether.

4 Depersonalize it.

5 Audit any high-risk decisions internally.

6 Beware e-mail.

7 Beware code words like “malcontent,” “trouble-maker,” “pot-stirrer,” “disruptive” or “bad attitude.” Ambiguous descriptors without specifics unrelated to protected activity add nothing but risk.

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[1] The number of retaliation charges filed in 2016 increased from 2015 (42,018 or 44.5%).

[2] . It includes a “Small Business Fact Sheet” and “Questions and Answers” attached to this outline along with a Joint Fact Sheet outlining that retaliation based on exercise of workplace rights is unlawful with specific reference to the FLSA, OSHA, OFCCP, the “EEO” statutes, NLRA, and Immigration and Nationality Act.

[3] None of the lists provided here are exhaustive.

[4] For a list of state whistleblower laws, see National Conference of State Legislatures, State Whistleblower Laws, published at .

[5] It’s important to remember that even non-union employers can be subject to NLRB investigation and penalties for retaliating against employees who engage in “protected concerted activity” or other acts protected under the NLRA such as threatening to file a charge or talking to coworkers about doing so in the future. The protection extends to undocumented workers.

[6] Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53, 67-68 (2006).

[7] Id.

[8] Prior to Burlington, the Sixth Circuit required that a plaintiff show an “adverse employment action,” which it defined as a “materially adverse change in the terms and conditions” of employment. Id. at 60. The Fifth and Eighth Circuits employed a more restrictive approach, requiring “an ultimate employment decision,” which limited actionable conduct to actions “such as hiring, granting leave, discharging, promoting, and compensating.” Id. The Seventh and the District of Columbia Circuits required the plaintiff to show that the “employer’s challenged action would have been material to a reasonable employee,” meaning that it “would likely have dissuaded a reasonable worker from making or supporting a charge of discrimination.” Id. Finally, the Ninth Circuit simply required that a plaintiff establish “adverse treatment that is based on a retaliatory motive and is reasonably likely to deter the charging party or others from engaging in protected activity.” Id.

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