employee retaliation claims: growing litigation threat

Employee Retaliation Claims:

Growing Litigation Threat Minimizing Litigation Exposure and Defending Lawsuits and EEOC Charges

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TUESDAY, AUGUST 21, 2012

Presenting a live 90-minute webinar with interactive Q&A

Anthony J. Oncidi, Partner, Proskauer Rose, Los Angeles

Arlene Switzer Steinfield, Shareholder, Cox Smith Matthews, Dallas

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August 17, 2012 Retaliation Claims 4

Recent Trends In Employee Retaliation Claims

Anthony J. Oncidi, Esq.

Proskauer Rose LLP

[email protected]

(310) 284-5690

August 21, 2012


Retaliation Claims Are On The Rise

0%

5%

10%

15%

20%

25%

30%

35%

40%

1998

1999

2000

2001

2002

2003

2004

2005

2006

2007

2008

2009

2010

2011

% of EEOC claims alleging some form of retaliation


Kasten v. Saint-Gobain Performance Plastics

Corp., 131 S. Ct. 1325 (2011)

• Employee complained orally to his employer about the location of the time clocks, which prevented workers from receiving full work-time credit

• The FLSA’s anti-retaliation provision protects an employee who “has filed any complaint…under or related to [the Act]”

• Issue: Is this employee protected under the Act?

• Held: Yes. The Court ruled in favor of the employee, finding that Congress intended the anti-retaliation provision to cover oral as well as written complaints


Thompson v. North American Stainless, LP,

131 S. Ct. 863 (2011)

• Plaintiff claimed he was fired because his fiancée filed an EEOC charge alleging sex discrimination against their mutual employer

• Held: Title VII’s anti-retaliation provision must be broadly construed to create a cause of action for third-party retaliation against persons who did not themselves engage in protected activity

• Title VII’s retaliation protections would be undermined if Plaintiff were precluded from suing, since it is “obvious that a reasonable worker might be dissuaded from engaging in protected activity if she knew that her fiancé would be fired”


Crawford v. Metropolitan Gov’t of Nashville,

555 U.S. 271 (2009)

• While Plaintiff was being interviewed in the course of an investigation into another employee’s sexual harassment complaint, she revealed that she, too, was a possible victim of harassment

• After Plaintiff was thereafter terminated for “embezzlement,” she filed suit alleging retaliation

• Held: The anti-retaliation provision of Title VII protects an employee who reports sexual harassment while cooperating with an employer’s internal investigation

- Even if the employee did not initiate that investigation and never filed a formal charge of harassment


Gómez-Pérez v. Potter, 553 U.S. 474 (2008)

• After filing an age discrimination complaint against her employer (the USPS), Plaintiff’s hours were significantly reduced and she was subjected to other forms of retaliation (including groundless complaints and false accusations)

• Held: Although the ADEA’s prohibition against age discrimination toward federal employees lacks specific anti-retaliation language, the prohibition against “discrimination” includes a prohibition against retaliation

• The language in the ADEA prohibiting “discrimination based on age” was not materially different from the language at issue in other cases where the Court found an implied prohibition of retaliation based on expressly protected characteristics such as race and sex


CBOCS West, Inc. v. Humphries,

553 U.S. 442 (2008)

• Plaintiff filed suit alleging that his employer fired him because of his race and in retaliation for his complaining to management about allegedly discriminatory treatment of a fellow black employee

• Held: Consistent with Sec. 1982 (protecting the right to own property), Sec. 1981 prohibits retaliation

• Sections 1981 & 1982 were enacted together, have common language, serve similar purposes – and, therefore, both prohibit retaliation


Burlington N. & Santa Fe Ry. Co. v. White,

548 U.S. 53 (2006)

• Plaintiff was transferred from her position as a fork lift operator and was later suspended without pay after complaining about sexual harassment. She eventually was reinstated with full back pay

• Held: Retaliation occurs whenever an employer takes a materially adverse action, i.e., any action that “well might have ‘dissuaded a reasonable worker from making or supporting a charge of discrimination’”

• Need not be an ultimate employment action such as hiring, firing, or promotion


Garcetti v. Ceballos, 547 U.S. 410 (2006)

• Plaintiff (a deputy DA) claimed he was subjected to a series of adverse employment actions after objecting to an allegedly improper affidavit filed by his superiors

• Held: The 1st Amendment does not prevent a public employer from exercising managerial discipline of employees for expressions they make as part of their official duties

• In that he was speaking as an employee, the DA could take adverse action against Plaintiff


Jackson v. Birmingham Bd. of Ed.,

544 U.S. 167 (2005)

• Plaintiff, a girls’ basketball coach,

received negative evaluations and

ultimately was removed from his post

after complaining about unequal

funding for girls’ sports programs

• Held: Title IX’s private right of action

prohibits retaliation against individuals

who have complained about sex

discrimination in federally funded

programs. 20 U.S.C. § 1681, et seq.


Dodd-Frank Wall Street Reform and Consumer

Protection Act (H.R. 4173, § 922)

• Whistleblowers who provide “original information” to the SEC or the CFTC leading to successful prosecution of securities law are entitled to a bounty

• Whistleblower may be “any individual,” including officers, agents, employees – even competitors!

• Bounty = 10 to 30% of sanctions > $1 million

• Whistleblowing employees are protected from retaliation


Sarbanes-Oxley Act of 2002,

18 U.S.C. § 1514A

• SOX grants whistle-blower protection to employees of publicly-traded companies by prohibiting employers from retaliating against employees for reporting potentially unlawful conduct

• Employer may not “discharge, demote, suspend, threaten, harass, or in any manner discriminate against” an employee because the employee provided information regarding conduct the employee reasonably believed constituted mail, wire, securities, shareholder or bank fraud or that was a violation of a rule or regulation of the SEC

Practical Steps to Minimize

Retaliation Claims

Anthony J. Oncidi, Esq.

Proskauer Rose LLP

[email protected]

(310) 284-5690

Arlene Switzer Steinfield

Cox Smith Matthews

[email protected]

(214) 698-7833

NOTE: The content for this section of the webinar was prepared by Attorney Nancy Barnes, a partner with Thompson Hine LLP

and prior panelist for this webinar. The slides are used with her express permission.

http://www.coxsmith.com/Home

mailto:[email protected]

mailto:[email protected]


# 1: Documentation is Key!

• Of course, this is always the case in any employment

situation!

• Documentation is important to demonstrate that the

deficiencies are real and that adverse action is justified. Juries

are more likely to believe it if it is on paper!

• Documentation that predates the complaint or investigation is

even better to establish an ongoing or pre-existing problem.

See Carrington v. City of Des Moines, 481 F.3d 1046 (8th Cir.

2007).

• Follow up communications with complainant should be in

writing.

• If there are accusations of “soft” retaliation, document efforts

to follow up or sanction that behavior.


# 1: Documentation is Key!

• Documentation is a sword and a shield! Part of the manager training session should include an emphasis on what should be and what should not be in the documentation.

• Mention of protected activity should be avoided in evaluations, discipline or RIF analysis, for example.

• Cutcher v. Kmart Corp., 2010 U.S. App. Lexis 2283 (Feb. 1, 2010) (employer lost summary judgment on retaliation claim where RIF documentation included notation that plaintiff was on leave).


# 2: Implement Second Level of Review When

Considering Adverse Action

• There are times when adverse action (poor evaluations, discipline, termination) are unavoidable.

• Having a party with no knowledge of complaint or protected action reviewing the decision helps to insulate the company from retaliation claims.

• HR should also review any adverse action involving protected parties to determine if there are “red flags” and where legal counsel should be involved.

• Steps should be taken to verify nature of issue – avoid evaluations and decisions that are based on subjective criteria – e.g., “not a team player.”


# 3: Be On The Lookout For “Subtle”

Retaliation

• One of the most difficult things to monitor is subtle retaliation.

• While most courts will not find that “snubbing” or other negative personality conflicts are substantial enough to constitute retaliation, other subtle actions may be enough to state a claim –

- Less desirable assignments or job duties

- Less opportunity for overtime, commissions, bonuses

- Stricter enforcement of rules – e.g. writing an employee up for being 1 minute late to work.


# 3: Be On The Lookout For “Subtle”

Retaliation

• Many things can constitute retaliation.

- Goldsmith v. Bagby Elevator Co., 513 F.3d 1261 (11th Cir. 2008) (discharging employee for refusing to sign arbitration agreement is evidence of retaliation).

- Kessler v. Westchester Cty. Dep’t of Social Servs., 461 F.3d 199 (2d Cir. 2006) (lateral transfer was potentially retaliatory where job duties were more clerical and less executive).


# 4: Be Sure Investigations or Other Protected

Activities Are “Need to Know”

• The more people who know about protected activity – the more people who can be accused of retaliation.

• In addition, there is a “ripple” effect from even those who officially do need to know about protected activity.

• Emphasize the need for confidentiality throughout the investigation.

• Encourage employees to come to HR with concerns about protected activity (e.g., complaints about intermittent leave and its impact on other employees) rather than talking to co-workers.


# 5: Consider Severance and Releases When

Facing Potential Retaliation Situations

• Inclusion of a reinstatement waiver can insulate a former employer from retaliation liability for failure to re-hire. See Jencks v. Modern Woodmen of Am., 479 F.3d 1261 (10th Cir. 2007).

• When considering whether to be proactive and offer severance – be aware of the following:

- According to Jury Verdict Research, in 2009, the median award in employment cases was over $325,000.

- According to Business Week, the average settlement in employment litigation in 2009 was approximately $90,000.

- The estimated average cost in attorney’s fees to litigate an employment case through trial is $250,000 according to one source.


# 5: Consider Severance and Releases When

Facing Potential Retaliation Situations

• The reality is that there are situations where payment of severance in exchange for a complete release is an economically justifiable option.

- Sliding scale – legitimacy of claims of retaliation v. justification for adverse action.

- What is the proximity in time?

- Weigh litigious nature of the employee – this is where the follow up is of particular value.

- Know the situation – is employee papering the file? keeping a diary?

• Be sure to paper the deal correctly.

• Include a waiver of right to re-apply for employment.

# 6: Have a Written Anti-Retaliation Policy

• An Anti-Retaliation Policy should be part of your

Employee Handbook.

• It should include a reporting process for employees who

believe that they have been subject to retaliation in any

form.

• It should provide for investigations of claims of

retaliation – treat it just like any other complaint!!

• It should include sanctions for employees who engage

in retaliation, including termination.

• It should provide for a reporting mechanism that allows

the employee to side-step the alleged “retaliator”

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# 7: Provide Training to Supervisors and Managers

• As everyone knows – written policies are great, but if managers and

supervisors are not trained, they don’t do much good.

• Companies should provide regular training to supervisors and managers

about the anti-retaliation policy.

• Acknowledge the natural frustration – particularly with employees who lodge

unfounded complaints or appear to be seeking protected status to prevent a

termination or discipline.

• Engage in role-playing.

• Share litigation stories and scenarios so that supervisors can understand what

a jury’s perspective will be on a claim of retaliation.

• Emphasize confidentiality as part of training – the more people who know

about the protected conduct – the easier it is for a plaintiff to allege

retaliation.

26

# 8: Make Sure Anti-Retaliation Policy is Part of

the Investigation Process

• Everyone involved in the investigation (complainant, subject of

the complaint and witnesses) should all receive a copy of the

Anti-Retaliation Policy.

• Any written communications regarding the investigation process

or the outcome of the investigation should reiterate that the

Company will not tolerate retaliation.

• All interviews should conclude with a statement about the

company’s anti-retaliation policy and that should be recorded in

witness interview notes and reports.

• Employees should be encouraged to report suspected retaliation

promptly.

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# 9: Timing is Everything!

• This step is KEY!

• We are going to talk about litigation strategies later in the presentation, but

timing is truly very important when it comes to a plaintiff’s ability to state a

claim for retaliation.

• It is a sliding scale that differs in each jurisdiction –some say that the passage

of two months is too much; others look at longer periods. Thompson v. Bi-

State Dev. Agency, 463 F.3d 821 (8th Cir. 2006) (four months too long);

Tomanovich v. City of Indianapolis, 457 F.3d 656 (7th Cir. 2006) (four months

too long).

• Obviously, the farther away in time from protected action, the better.

• Even when adverse action is justified, delaying that action as long as possible

(within reason!) can only help when it comes to retaliation claims.

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# 10: No News is NOT Good News – Be Proactive!

• This step is somewhat counter-intuitive.

• Many times, HR professionals hope that they never hear

from the complaining party again.

• They don’t want to “stir the pot” or suggest that there

could be retaliation by following up with complainant.

• It is BETTER to know up front if the complainant thinks

that he or she is being subjected to retaliation.

• Moreover, many employees will report that all is fine or

the situation has improved, if asked – a number of those

reports (in writing!) go a long way toward defeating or

avoiding a retaliation claim.

29

Litigation Strategies

Arlene Switzer Steinfield Cox Smith Matthews

[email protected] 214-698-7833

31

Initial Dismissal Motion Strategies

Determine whether you have grounds for a Rule 12(b)(6) Motion

- Has the plaintiff pleaded the essential elements of a retaliation claim?

Protected activity

Adverse employment action

Causal connection

- Rule 12(b)(6) Motion under Iqbal

Under Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009), “[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Iqbal, 129 S.Ct. at 1949.

“The plausibility standard is not akin to a ‘probability requirement,’” although it requires more than a showing of “a sheer possibility that a defendant has acted unlawfully[.]” Id.

Iqbal makes clear that “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.” Id. As a result, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id.; see also Vernon v. City of Dallas, 2009 WL 2486033, *2 (N.D. Tex. 2009).

Rule 8 “demands more than an unadorned, the defendant-unlawfully-harmed me accusation.” Iqbal, 129 S.Ct. at 1949 (citations omitted).

32

Initial Dismissal Motion Strategies (Cont’d)

Bottom line: Review the allegations of retaliation to determine whether they consist of little more than basic recitations of the essential elements of retaliation E.g., “I complained of discrimination and then I was terminated.” If so, a Rule 12(b)(6) Motion based on Iqbal may be appropriate.

Did Plaintiff allege exhaustion of remedies properly?

Are the causes of action that sometimes accompany retaliation claims precluded as a matter of law?

- E.g. Intentional infliction of emotional distress; negligent hiring, training, supervision, or retention

If not, is it better to wait to file an MSJ to assert such defenses?

Do you want to “educate” the plaintiff’s counsel as to flaws in the complaint?

33

Summary Judgment Strategies

Plan your MSJ as soon as you have completed your investigation of the case.

Never overlook possible procedural defenses

- Statute of limitations

- Was the retaliation claim included in the charge or an amended charge?

If not, should it have been, or would it be deemed to grow out of the underlying charge of protected-class discrimination?

Sanchez v. Standard Brands, 431 F.2d 455 (5th Cir. 1970) – The permissible scope of a judicial complaint asserting a Title VII claim is limited to the scope of the EEOC charge and “the investigation which could reasonably be expected to grow out of the initial charges of discrimination.”

34

Summary Judgment Strategies (Cont’d)

Has the plaintiff adequately alleged and proven exhaustion of remedies? Is it necessary to file a separate charge of retaliation every time an adverse employment action occurs?

Jones v. Calvert Group, Ltd., 551 F.3d 297 (4th Cir. January 5, 2009)

The district court erred in granting summary judgment on the retaliation claim on the grounds of failure to exhaust her remedies. Plaintiff’s second charge alleged a pattern of ongoing conduct in retaliation for her filing her first charge that included the denial of mentoring opportunities, excessive scrutinization of her performance, and a negative performance review. Although she never filed a subsequent charge of retaliation challenging her termination, the Fourth Circuit held that she exhausted her administrative remedies with respect to the claim of retaliatory discharge because it was reasonably related to her prior charge.

35


If you did not assert certain applicable defenses in a Motion to Dismiss, they

should be included in the MSJ.

- If the plaintiff has failed to state a cognizable claim for certain causes of action

by failing to adducing evidence of essential elements.

- Certain procedural defenses, such as untimeliness, require documentary

evidence and therefore cannot be asserted in Rule 12(b)(6) Motion. (Be careful

in jurisdictions which only allow one MSJ per party.

36


Formulate your trial story and your key evidentiary points before discovery gets

underway:

Reason for the decision

Decision makers

Management consensus for the decision

Chronology of events and the timing of the decision

If applicable, the chronology should demonstrate that the decision makers

lacked knowledge of the protected activity before and up to the time the

decision was made

Adequate support in the documentary evidence for articulated reason for the

decision

Lack of anecdotal evidence of retaliatory intent

Elimination of possible “cat’s paw” liability

Eliminate, or at least minimize, the role of the “biased supervisor”

- See, e.g., Lakeside-Scott v. Multnomah County, 556 F.3d 797 (9th Cir.

2009)

37


Prepare your witnesses accordingly

- Make sure your witnesses have a firm understanding of the key points and the

factual chronology

It is crucial to establish that they lacked knowledge of the protected activity

prior to reaching the decision, if those are the facts.

If the decision makers were unaware of the protected activity before they

made the decision to undertake the adverse employment action, make sure

the witnesses are clear on the chronology.

Interview other managers to determine whether any of the decision makers

spoke with them about when he or she learned of the protected activities, so

that they don’t unwittingly destroy the defense of lack of knowledge.

38


Practice Tip: Don’t notify the complainant’s supervisor(s) of the filing of the charge, unless it is necessary to investigate the charge. However, to prove that the decision makers had knowledge, an employee who has engaged in protected activity may inform his or her supervisors of the protected activity.

- Explain plaintiff’s theory of the case at the outset of witness preparation

- Make sure the witnesses understand the type of answers that may create a fact issue sufficiently

material to defeat summary judgment.

- Prepare them to avoid certain themes about which they can only speculate:

Management disliked complainers

Plaintiff was a thorn in the company’s side.

Management was angry that plaintiff filed a charge, and never again trusted

her.

The company did not follow all the steps in the disciplinary process when

they fired plaintiff.

Plaintiff was terminated for some reason that deviates from the reason

articulated by the employer’s other witnesses in their depositions.

39


What are the key admissions to obtain from the plaintiff:

- No protected activity

Complaining about a supervisor “harassing” or discriminating against a plaintiff on some basis other than a protected characteristic is not sufficient.

- Fisher v. Alco Standard Corp., 1998 U.S. App. LEXIS 7948, at *3 (9th Cir. Apr. 22, 1998) (complaints that a co-worker was "rude and unpleasant" did not constitute protected activity)

- Mukherjee v. Sheraton-Palace Hotel, 1995 U.S. App. LEXIS 590, at *7-8 (9th Cir. Jan. 10, 1995) (complaints that other employees were "rude" and "harassing," absent any allegation that the conduct was motivated by discrimination, was not protected activity.")

40


- No adverse employment action

Under Burlington Northern & Santa Fe Railway v. White, 548 U.S. 53 (2006), the plaintiff must show that the employer committed an act “materially adverse to a reasonable employee or job applicant.” The alleged adverse employment action “might have dissuaded a reasonable employee from making or supporting a charge of discrimination.” 548 U.S. at 67-68.

- Hunter v. Secretary of U.S. Army, 565 F.3d 986 (6th Cir. 2009) – Summary judgment was affirmed because the decision makers were not aware of the protected activity, and the alleged adverse actions were nothing more than “petty slights and minor annoyances, including work package being delayed for a week, being moved to a new work unit, and being required to leave a note whenever he left his work station.

- No “smoking gun” comments by supervisors

- No “smoking gun” documents

- No evidence that the decision makers had knowledge of the protected activity at all or, alternatively, no evidence that the decision makers had knowledge of the protected activity at the time the decision to take the adverse action was made, even if the decision was carried out after such knowledge was acquired.

41


- No similarly situated employees who did not engage in protected activity

and who were treated more favorably

- Does the plaintiff have anything other than his or her subjective belief that

retaliation was the true reason for the adverse action?

- Did the plaintiff engage in the conduct for which he or she was disciplined?

- If not, does the plaintiff have any reason to doubt that the company was

acting in good faith when the decision to take the adverse employment

action was made?

- Had the plaintiff engaged in protected activity previously without being

disciplined?

42


Review plaintiff’s summary judgment response to see if he or she has

added new claims to defeat summary judgment.

A claim that was not raised in the complaint or amended complaint, but was

raised for the first time in response to the MSJ, is not properly before the

court and does not bar the entry of summary judgment.

Cutrera v. Bd. of Supervisors of La. State Univ., 429 F.3d 108 (5th Cir.

2005) – The court dismissed plaintiff’s First Amendment retaliation

claim because it was not raised in her complaint, and granted

summary judgment in the employer’s favor.

See also Fisher v. Metro. Life Ins. Co., 895 F.2d 1073 (5th Cir. 1990)

A Most Difficult Situation

Litigation against an incumbent employee

• Does an employer “dare to discipline” an incumbent employee who is

already suing the company?

• How much should an employer have to tolerate if the employee litigant

stops performing, engages in acts of misconduct or insubordination, or

resorts to self-help discovery?

• If the employee holds a sensitive or confidential position (e.g. finance or

human resources), should the employer transfer the employee to

another position pending the resolution of the litigation?

• Should the employee be excluded from any management meetings?

43

Evidentiary Standards

Smith v. Xerox Corp., 602 F.3d 320 (5th Cir. 2010) -- Plaintiff in a retaliation case was not required to present direct evidence of retaliation to receive a mixed-motive jury instruction; to the extent the Fifth Circuit required otherwise in retaliation cases; that decision was necessarily overruled by Desert Palace.

A mixed-motive instruction may be given “if the district court has before it substantial evidence supporting a conclusion that both a legitimate and an illegitimate (i.e., more than one) motive may have played a role in the challenged employment action.”

Compare:

Van Horn v. Best Buy Stores, L.P., 526 F.3d 1144 (8th Cir. 2008) – The Price Waterhouse standard does not apply to retaliation claims. To establish a retaliation claim, “the plaintiff must show that the protected conduct was a ‘determinative- not merely motivating-factor’ in the employer’s adverse employment decision. Summary judgment was affirmed: “the evidence simply cannot support a reasonable inference, as opposed to a speculative guess, that her two acts of protected conduct . . . were a determinative factor, not merely a motivating factor, in [the employer’s] decision to discharge [plaintiff] when her position was eliminated”

44

45

Causal Connection and Pretext Issues

Temporal Proximity

- Is it enough, standing alone, to prove causation? No.

Strong v. University Healthcare System, L.L.C., 482 F.3d 802 (5th

Cir. 2007) -- Court affirmatively rejected the notion that temporal proximity, standing alone, was sufficient proof of but-for causation. Such a rule "would unnecessarily tie the hands of employers.”

Richmond v. ONEOK, Inc.,120 F.3d 205 (10th Cir. 1997) -- Three month period between protected activity and termination, standing alone, was insufficient to establish a causal connection for an FLSA retaliation claim.

King v. Town of Hanover, 116 F.3d 965 (1st Cir. 1997): - Evidence that plaintiff complained about sexual harassment and was disciplined 5 months later was insufficient to establish causal connection for claim of retaliation.

46


(Cont’d)

Nelson v. J.C. Penney Co., 75 F.3d 343 (8th Cir. 1996) -- The Fourth Circuit

Court of Appeals vacated trial court's judgment on retaliatory discharge

claim and expressly disagreed with trial court's finding that mere coincidence

of timing established a submissible case of retaliatory discharge.

Cram v. Lamson & Sessions Co., 49 F.3d 466 (8th Cir. 1995) -- The fact that

the complaint and plaintiff's termination were separated by less than three

months does not alone establish a causal connection between the events.

Quiroga v. Hasbro, Inc., 934 F.2d 497 (3d Cir. 1991) -- The Third Circuit

Court of Appeals refused to find an inference of retaliation based on timing

of discharge alone. Temporal proximity was not enough to establish causal

connection.


(Cont’d)

The employer does not have to be right about the reason for termination provided that the decision was reached in good faith and was not tainted by discriminatory animus:

- Ladd v. Grand Trunk Western R.R., Inc., 552 F.3d 495 (6th Cir. 2009) – Court found that an employer was not liable on a Title VII retaliation claim so long as it “acted upon an honest belief in its non-discriminatory reason and made a reasonably informed and considered decision.”

- Turner v. Texas Instruments Inc., 555 F. 2d 1251 (5th Cir. 1977) -- Court found that employer provided legitimate, non-discriminatory reason for disparate treatment where the record made clear that the supervisors truly believed that the plaintiff had deliberately violated company policy.

- Mato v. Baldauf, 267 F.3d 444 (5th Cir. 2001) -- Employer argued that reorganization of department was a legitimate non-discriminatory reason for plaintiff's termination. In making the pretext determination, the Court refused to second guess the employer's business decisions and reversed trial court's denial of employer's MSJ. "We have repeatedly and emphatically stated that anti-discrimination laws 'are not vehicles for judicial second-guessing of business decisions.'"

47

48


(Cont’d)

Is protected activity a sword or a shield in these cases?

- Burlington Northern & Santa Fe Railway v. White -- “An employee's decision to report

discriminatory behavior cannot immunize that employee from those petty slights or

minor annoyances that often take place at work and that all employees experience.”

- Ziskie v. Mineta, 547 F.3d 220 (4th Cir. 2008) – Fourth Circuit affirmed the district

court's grant of summary judgment on plaintiff's retaliation claim. While a plaintiff may

be shielded from retaliation on account of her assertion of protected rights under Title

VII, she “is not thereby insulated from the consequences of insubordination or poor

performance.”

- Argyropoulos v. City of Alton, 539 F.3d 724 (7th Cir. 2008) – An employee who filed a

sexual harassment complaint was fired for surreptitiously recording a meeting with her

supervisors. Although her reason for taping the meeting was to obtain evidence of

discrimination, her “dubious self-help tactics or workplace espionage” went beyond the

protections of Title VII.


(Cont’d)

Intervening Events

- Amrhein v. Heath Care Serv. Corp., 546 F.3d 854 (7th Cir. 2008) –

Appellate court affirmed summary judgment on the retaliation claim. In

the course of three months between the first time plaintiff threatened to

file an EEOC charge and her termination, there were intervening events

of misconduct by plaintiff including her conflicts with her supervisors, her

acts of insubordination, her violation of a code of conduct and her

excessive telephone use.

49


(Cont’d)

What facts matter in refuting an inference of pretext?

- Giving plaintiff a chance to tell his side of the story:

Moody v. M.W. Kellogg Co., 1999 WL 153032 (5th Cir. Mar. 8, 1999) -- Plaintiff argued that the company's failure to do more to investigate her side of the story was evidence of pretext. The court affirmatively rejected this argument, stating that the employer “did not need to undertake heroic efforts to ensure that its investigation was flawless.”

- How did the employer treat other employees?

- Did everyone involved in the decision agree with the discipline?

- Did the recommendation of discipline change over time and, if so, why?

50

51

Jury Selection

Remember, in retaliation cases, there is almost always

an underlying claim of discrimination. Jury selection

must take into account both issues surrounding the

discrimination claim in addition to the retaliation claim.

52

Jury Selection (Continued)

Juror Questionnaires – if permitted by the court, ask about whether they or a family

member or a close friend has had:

- prior experience as a whistleblower

- prior discharges, forced resignations, constructive discharges, demotions

- prior experiences with workplace discrimination and harassment

- prior experience with workplace complaints of such discrimination and harassment,

and whether they felt that were subject to retaliation or were not “heard” by the

employer

- prior experience with any other workplace complaints and whether they felt they were

“heard” by the employer

- prior experience as a claimant in an employment dispute of any kind

- prior experience as a subject of an investigation of any kind

- any other prior bad employment experiences

- prior managerial experience

- union affiliation

- civic activities

- anything else they wish to discuss with the privately

53

Jury Selection (Continued)

Preliminary statement of the case

- It needs to be as factual and neutral as possible

- Ensure that it is free of inflammatory or emotionally

charged statements

- No references to plaintiff as a whistleblower

- Avoid any statements that connect timing of the

complaint to the adverse employment action – e.g.

Plaintiff complained and then she was fired just 10

days later.

54

Jury Selection

Voir Dire

- If the Court allows lawyers to examine the jury panel, ask questions:

that follow up on issues presented in the juror questionnaire

that elicit the potential jurors’ ability to apply the employment-at-will doctrine

that elicit a juror’s opinion on an employer’s right to make personnel decisions

that may not be fair or the best decision or even correct

that elicit whether a juror believes that he or she had been falsely accused of

misconduct (if this is a misconduct case) or received an unfair or inaccurate

performance review

that elicit a juror’s view as to whether an employee who complains of

discrimination is immune from disciplinary action for either misconduct or

performance deficiencies

that elicit a juror’s view as to whether an employee who complains of

discrimination should receive any type of preferential treatment in the workplace

that elicit a juror’s views about drawing inferences based on timing alone

that ask whether a juror thinks an employee should always be allowed to tell his

or her “side of the story” (in cases where that did not occur) or whether an

employee should always be allowed procedural safeguards

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Jury Selection

So who do you want on your jury?

- Life experiences vs. stereotypical notions

- Professions – avoid union members, business agents, shop

stewards

- Hard to generalize about certain professions although some

might argue that you don’t want those in the “helping

professions” such as teachers or nurses, or rank-and- file

workers

- Managers, foremen, and those who identify with employers are

more acceptable

employee retaliation claims: growing litigation threat

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