fourth annual public employment law seminar title vii – retaliation november 7, 2013 eugene h....

Fourth AnnualFourth AnnualPublic Employment Law SeminarPublic Employment Law Seminar

Title VII – RetaliationTitle VII – Retaliation

November 7, 2013November 7, 2013

Eugene H. MatthewsEugene H. Matthews

[email protected]

www.richardsonplowden.com

mailto:[email protected]


42 U.S.C. § 2000e-3(a) – Discrimination for 42 U.S.C. § 2000e-3(a) – Discrimination for making charges, testifying, assisting, or making charges, testifying, assisting, or participating in enforcement proceedings participating in enforcement proceedings

It shall be an unlawful employment practice for an employer to It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for discriminate against any of his employees or applicants for employment … employment …

becausebecause he has opposed any practicehe has opposed any practice made an unlawful made an unlawful employment practice by this subchapter, or employment practice by this subchapter, or

because he has because he has made a charge, testified, assisted, or made a charge, testified, assisted, or participated in any mannerparticipated in any manner in an investigation, proceeding, in an investigation, proceeding, or hearing under this subchapter.or hearing under this subchapter.


Title VII – RetaliationTitle VII – Retaliation Proof SchemesProof Schemes

To prevail on a retaliation claim under these statutes, a To prevail on a retaliation claim under these statutes, a plaintiff may offer plaintiff may offer direct evidence direct evidence of retaliation. of retaliation.

More often, however, plaintiffs proceed under More often, however, plaintiffs proceed under indirect indirect evidence, evidence, the three-step the three-step McDonnell DouglasMcDonnell Douglas proof proof scheme. Under this procedure, the plaintiff must first scheme. Under this procedure, the plaintiff must first establish a establish a prima facieprima facie case by a preponderance of the case by a preponderance of the evidence that shows: evidence that shows: the plaintiff engaged in a “the plaintiff engaged in a “protected activityprotected activity,”,” the employer the employer discriminateddiscriminated against the plaintiff, and, against the plaintiff, and, there is a there is a causal link causal link between the protected activity and between the protected activity and

the discrimination.the discrimination. Baqir v. Principi, Baqir v. Principi, 434 F.3d 733, 747 (4th Cir. 2006).434 F.3d 733, 747 (4th Cir. 2006).


Title VII – RetaliationTitle VII – Retaliation Proof SchemesProof Schemes

If the employee makes a prima facie case, the employer If the employee makes a prima facie case, the employer must articulate a must articulate a legitimate, non-discriminatory reason legitimate, non-discriminatory reason (LNDR) for its action.(LNDR) for its action.

The employee must then prove that the employer’s LNDR is The employee must then prove that the employer’s LNDR is a a pretextpretext for unlawful retaliation. for unlawful retaliation.


Title VII – RetaliationTitle VII – Retaliation What is a “protected activity” in a Title VII What is a “protected activity” in a Title VII

retaliation case?retaliation case?

The “Opposition” ClauseThe “Opposition” Clause The employee must oppose practices that are unlawful The employee must oppose practices that are unlawful

under Title VII, or must under Title VII, or must oppose practices that the oppose practices that the employee “reasonably believes” are unlawful under Title employee “reasonably believes” are unlawful under Title VIIVII. However, “opposition” to employment practices . However, “opposition” to employment practices that the employee merely believes are somehow unfair, that the employee merely believes are somehow unfair, but not unlawful under Title VII, is not protected. but not unlawful under Title VII, is not protected. EEOC EEOC v. Navy Federal Credit Unionv. Navy Federal Credit Union, 424 F.3d 397, 406-407 , 424 F.3d 397, 406-407 (4th Cir. 2005); (4th Cir. 2005); McNair v. Computer Data Sys., IncMcNair v. Computer Data Sys., Inc., 172 ., 172 F.3d 863 (4th Cir. 1999).F.3d 863 (4th Cir. 1999).




The “Opposition” ClauseThe “Opposition” Clause

Crosby v. City of WalterboroCrosby v. City of Walterboro, 444 F.Supp.2d 559, 564 , 444 F.Supp.2d 559, 564 (D.S.C. 2006) (speculation to co-worker that sexual (D.S.C. 2006) (speculation to co-worker that sexual harassment may have taken place, and recommending harassment may have taken place, and recommending that the co-worker seek legal counsel, was that the co-worker seek legal counsel, was notnot protected protected “opposition” activity).“opposition” activity).



What is a “protected activity” in a Title VII What is a “protected activity” in a Title VII retaliation case?retaliation case?

The U.S. Supreme Court also recently defined the The U.S. Supreme Court also recently defined the “opposition” clause to protect an employee who spoke “opposition” clause to protect an employee who spoke out about sexual harassment, not on her own initiative, out about sexual harassment, not on her own initiative, but in answering questions during employer’s but in answering questions during employer’s investigation of coworker’s complaints. investigation of coworker’s complaints. Crawford v. Crawford v. Metropolitan Gov’t of NashvilleMetropolitan Gov’t of Nashville, 555 U.S. ---, 129 S.Ct. , 555 U.S. ---, 129 S.Ct. 846, 172 L.Ed.2d 650 (2009). 846, 172 L.Ed.2d 650 (2009).

““Opposition” need not be “voluntary.”Opposition” need not be “voluntary.”




““Opposition” does NOT cover photocopying an Opposition” does NOT cover photocopying an employer’s confidential documents and sending them to employer’s confidential documents and sending them to a former co-worker, since the employer “had a a former co-worker, since the employer “had a reasonable and significant interest in preventing the reasonable and significant interest in preventing the dissemination of confidential personnel documents.” dissemination of confidential personnel documents.”

Also does NOT offer no protection where the employee Also does NOT offer no protection where the employee “lodged frequent, voluminous, and sometimes specious “lodged frequent, voluminous, and sometimes specious complaints and engaged in antagonistic behavior toward complaints and engaged in antagonistic behavior toward her superiors.” her superiors.” Robbins v. Jefferson County Sch. Dist.Robbins v. Jefferson County Sch. Dist., , 186 F.3d 1253, 1259 (10th Cir. 1999).186 F.3d 1253, 1259 (10th Cir. 1999).




To determine whether conduct is protected opposition To determine whether conduct is protected opposition activity “[w]e activity “[w]e balance balance the purpose of the Act to protect the purpose of the Act to protect persons engaging reasonably in activities opposing ... persons engaging reasonably in activities opposing ... discrimination, against Congress' equally manifest desire discrimination, against Congress' equally manifest desire not to tie the hands of employers in the objective not to tie the hands of employers in the objective selection and control of personnel.” selection and control of personnel.” Laughlin v. Laughlin v. Metropolitan Wash. Airports Auth.,Metropolitan Wash. Airports Auth., 149 F.3d 253, 259 149 F.3d 253, 259 (4th Cir.1998).(4th Cir.1998).




The “Participation” ClauseThe “Participation” Clause Scope of protection for activity falling under the Scope of protection for activity falling under the

participation clause is participation clause is broaderbroader than that falling under than that falling under the opposition clause, since activities falling under the the opposition clause, since activities falling under the participation clause are “essential to the machinery set participation clause are “essential to the machinery set up by Title VII.”up by Title VII.”




The “Participation” ClauseThe “Participation” Clause Even where a plaintiff testifies in a trial or deposition in Even where a plaintiff testifies in a trial or deposition in

an “unreasonable” manner, the participation clause an “unreasonable” manner, the participation clause requires no balancing test. requires no balancing test. Glover v. SLEDGlover v. SLED, 170 F.3d , 170 F.3d 411, 414 (4th Cir. 1999). 411, 414 (4th Cir. 1999).

““A straightforward reading of the statute's unrestrictive A straightforward reading of the statute's unrestrictive language leads inexorably to the conclusion that all language leads inexorably to the conclusion that all testimony in a Title VII proceeding is protected against testimony in a Title VII proceeding is protected against punitive employer action.”punitive employer action.”




The “Participation” ClauseThe “Participation” Clause Even protects an employee who admitted to harassing Even protects an employee who admitted to harassing

another employee, where he was fired for his admissions another employee, where he was fired for his admissions in his deposition testimony taken in a Title VII in his deposition testimony taken in a Title VII proceeding brought by the harasser’s victim. proceeding brought by the harasser’s victim. Merritt v. Merritt v. Dillard Paper CoDillard Paper Co., 120 F.3d 1181, 1189 (11th Cir. 1997).., 120 F.3d 1181, 1189 (11th Cir. 1997).

““Your deposition was the most damning to Dillard's case, Your deposition was the most damning to Dillard's case, and you no longer have a place here at Dillard Paper and you no longer have a place here at Dillard Paper Company.”Company.”


Titlle VII – RetaliationTitlle VII – Retaliation What is a “discriminatory act” in a Title VII What is a “discriminatory act” in a Title VII


Burlington Northern & Santa Fe Ry. Co. v. WhiteBurlington Northern & Santa Fe Ry. Co. v. White, 548 U.S. , 548 U.S. 53, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006).53, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006).

A plaintiff must show that he or she suffered retaliation A plaintiff must show that he or she suffered retaliation that a reasonable employee would have found to be that a reasonable employee would have found to be ““materially adversematerially adverse,” including actions beyond those ,” including actions beyond those concerning the terms and conditions of employment, concerning the terms and conditions of employment, such that the actions “such that the actions “well might have ‘dissuaded a well might have ‘dissuaded a reasonable worker from making or supporting a charge reasonable worker from making or supporting a charge of discriminationof discrimination.’ ” .’ ”

BROADERBROADER than “adverse action” in a § 2000e-2 case. than “adverse action” in a § 2000e-2 case.




Thompson v. North American Stainless, LP, Thompson v. North American Stainless, LP, 548 U.S. 53, 131 548 U.S. 53, 131 S.Ct. 863 (2011).S.Ct. 863 (2011).

Plaintiff’s fiancé filed EEOC charge against NAS Plaintiff’s fiancé filed EEOC charge against NAS NAS fired Plaintiff three week laterNAS fired Plaintiff three week later Plaintiff claims that NAS fired him in order to retaliate Plaintiff claims that NAS fired him in order to retaliate

against his fiancé for filing her charge with the EEOCagainst his fiancé for filing her charge with the EEOC

Discriminatory Act?Discriminatory Act?




Thompson v. North American Stainless, LP, Thompson v. North American Stainless, LP, 548 U.S. 53, 131 548 U.S. 53, 131 S.Ct. 863 (2011).S.Ct. 863 (2011).

Yes, it can beYes, it can be.. ““[T]he anti-retaliation provision, unlike the substantive [T]he anti-retaliation provision, unlike the substantive

provision, is not limited to discriminatory actions that provision, is not limited to discriminatory actions that affect the terms and conditions of employment.” affect the terms and conditions of employment.”

““We expect that firing a close family member will almost We expect that firing a close family member will almost always meet the always meet the BurlingtonBurlington standard, and inflicting a standard, and inflicting a milder reprisal on a mere acquaintance will almost never milder reprisal on a mere acquaintance will almost never do so, but beyond that we are reluctant to generalize.”do so, but beyond that we are reluctant to generalize.”


Titlle VII – RetaliationTitlle VII – Retaliation What is a “causal link” in a Title VII retaliation What is a “causal link” in a Title VII retaliation

case?case?

Direct Evidence – it still works.Direct Evidence – it still works. Indirect Evidence –Indirect Evidence –

TimeTime But how long?But how long?

Plaintiff must also show that the employer knew that the Plaintiff must also show that the employer knew that the plaintiff engaged in the protected activity prior to taking plaintiff engaged in the protected activity prior to taking discriminatory action. discriminatory action.


Titlle VII – RetaliationTitlle VII – Retaliation Can a plaintiff proceed with a mixed-motive Can a plaintiff proceed with a mixed-motive

theory in a Title VII retaliation case?theory in a Title VII retaliation case?

Univ. of Texas Southwestern Medical Center v. NassarUniv. of Texas Southwestern Medical Center v. Nassar, 133 S.Ct. , 133 S.Ct. 2517 (June 24, 2013).2517 (June 24, 2013).

How can plaintiffs prove a retaliation case?How can plaintiffs prove a retaliation case? Must prove “but-for” causationMust prove “but-for” causation May NOT proceed under the “mixed motive theory” described May NOT proceed under the “mixed motive theory” described

at 42 U.S.C. § 2000-2(m)at 42 U.S.C. § 2000-2(m) Civil Rights Act of 1991 placed mixed motive language in 42 Civil Rights Act of 1991 placed mixed motive language in 42

U.S.C. § 2000-2, NOT 42 U.S.C. § 2000-3.U.S.C. § 2000-2, NOT 42 U.S.C. § 2000-3. Similar rule in ADEA retaliation cases – Similar rule in ADEA retaliation cases – Gross v. FBL Financial Gross v. FBL Financial

Services, IncServices, Inc., 557 U.S. 167, 129 S.Ct. 2343 (2009).., 557 U.S. 167, 129 S.Ct. 2343 (2009).


Titlle VII – RetaliationTitlle VII – Retaliation

By the numbersBy the numbers

FY12 – Total # of EEOC Charges - FY12 – Total # of EEOC Charges - 99,41299,412 FY12 – Total # of Retaliation Charges - FY12 – Total # of Retaliation Charges - 37,83137,831 Percentage – Percentage – 38.1% 38.1%

HighestHighest of any single category, including race. of any single category, including race.


fourth annual public employment law seminar title vii – retaliation november 7, 2013 eugene h....

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