Wal-Mart Follows Properly-Drafted Accommodation Policy, Still ends up Potentially Liable for Retaliation

The Seventh Circuit issued a decision earlier this week which reminds employers that following a properly-drafted policy does not necessarily guarantee freedom from legal complications in all cases. More ›

Seventh Circuit Explains the Burden of Proof Applied to Retaliation Claims

In Kidwell v. Eisenhauer, the plaintiff police officer sued the Mayor of Danville, Illinois, along with the Director of Public Safety and two Deputy Directors. The officer pursued his First Amendment retaliation claim under 42 U.S.C. sec. 1983, and alleged that the defendants responded unlawfully by disciplining him and subjecting him to termination charges because of his public criticisms of various departmental officials at police officer union meetings. The case narrative contains many vivid facts, including the claims by a parolee informant of the officer that he had an explosive, which proved to be a piece of firework, and the officer transporting the same informant across state lines. More ›

Physician Partner may sue Physician’s Partnership for Retaliation Under FEHA

The California Court of Appeal recently determined that a physician partner could sue her partnership under the California Fair Employment and Housing Act (“FEHA”) for retaliation based upon that partner’s opposition to, and efforts to prevent, the sexual harassment of the partnership’s non-partner employees. The Court acknowledged that a partner cannot sue the partnership under the FEHA for alleged harassment or discrimination against the partner, or for retaliation for opposing harassment or discrimination against the partner. The Court further confirmed that a partner cannot sue her partnership for harassment, discrimination or retaliation under Title VII of the federal Civil Rights Act, however, the Court recognized that a partner is a "person" protected from retaliation under the FEHA for opposing alleged sexual harassment of the partnership's employees, because the anti-retaliation provision shields "any person" who opposes employment discrimination, even if there is no existing employment relationship with defendant. The Court noted that the circumstances before it were "unique" thus implying that such a retaliation claim will not be raised often. Nevertheless, the Court of Appeal's decision reflects a broadening of the FEHA prohibition against retaliation claims, which previously seemed to only apply to a relationship between employer and employee.

First Circuit Holds that Private Companies’ Employees not Entitled to Whistleblower Protections Under SOX

Former employees of private companies that act under contract as advisers to and managers of mutual funds organized under the Investment Company Act of 1940 filed suit against their respective employers for unlawful retaliation after they were terminated. The employees claimed that they were entitled to the whistleblower protection provision within the Sarbanes-Oxley Act of 2002 (18 U.S.C. 1514A) (“SOX”) because they had reported potential fraud and security violations. The employers contested this, arguing that SOX’s protections did not extend to employees of private companies, and filed motions to dismiss the lawsuits.The district court disagreed with the employers, holding that this particular provision of SOX did protect employees of private companies that are contractors or subcontractors to “public companies" (as defined under the Act), where those employees were reporting violations relating to fraud against shareholders. More ›

Punitive Damages Award not Upheld Against Employer when Amount is Considered Excessive

After suffering multiple work-related injuries to his shoulder, a package-car driver was released to work with restrictions by the company doctor. A company labor manager said the work restrictions meant that the employee could no longer work as a package driver. A specialist gave the employee the same diagnosis but made the work restrictions permanent. The employee’s own doctor said the employee could return to work without any restrictions. The employee was then re-examined by the company doctor and cleared to work. After a conversation with the company’s occupational health manager, however, the company doctor changed his opinion to match that of the specialist. As a result, the employee was barred from returning to work. The employee filed a grievance under the subject collective bargaining agreement, and a fourth doctor was asked to examine the employee. That doctor requested to run a functional capacity exam to test the strength of the employee’s shoulder but was told that the company would not pay for any testing. Thus, the fourth doctor made his evaluation based on the employee’s medical records alone and concluded that the employee could not perform the essential functions of his job. Ultimately, the employee was fired and he sued the employer for retaliation. A jury awarded the employee $630,307 in compensatory damages and $2 million in punitive damages. The U.S. Court of Appeals for the Tenth Circuit found that the evidence presented supported a reasonable inference in support of the employee’s retaliation claim. The court ultimately concluded, however, that the jury’s $2 million punitive damage award was excessive and violated the employer’s federal due process rights. Employers must ensure that adverse action is never based on an employee exercising his or her right to file a claim based on a work-related injury.

Jones v. United Parcel Serv. Inc., No. 09-3275 (10th Cir. Oct. 24, 2011)

Employee Not Subjected to "Materially Adverse" Action to Allow Retaliation Claim

A security officer complained to his employer that he was being sexually harassed by the employee in charge of training him to use firearms. In response to the security officer’s complaints, the employer staged an internal investigation and took action to prevent any further harassment. During the same period of time, the employer investigated the security officer’s excessive use of sick leave and his failure to check in equipment. The employer also required the security officer to attend a meeting on his day off without first informing him that the subject of the meeting was his alleged sexual harassment. Additionally, the employer threatened the security officer with termination, singled him out at an employee meeting by “staring” at him, and switched the security officer from day to night shift after he requested the change. The officer resigned and then sued the employer, alleging that he was retaliated against in violation of Title VII of the Civil Rights Act of 1964, as amended. The U.S. Court of Appeals for the Second Circuit found that the officer was never subjected to “materially adverse” action that would “dissuad[e] a reasonable worker from making or supporting a charge of discrimination.” Consequently, the court rejected the officer’s retaliation claim. Specifically, the court found that the investigations into the officer’s sick leave and misuse of equipment were warranted and were not disciplinary in nature. Additionally, requiring the officer to attend a meeting concerning his own sexual harassment complaints is not something that would dissuade a worker from making or supporting a charge. Finally, a shift change requested by the employee himself is not an adverse action, and without more, personality conflicts and verbal threats are “trivial harms” that also do not constitute materially adverse actions. While the employee’s retaliation claim failed in this case, employers must continue to ensure that an employee never becomes the target of adverse action because he or she has filed complaints of discrimination or harassment.

Tepperwien v. Entergy Nuclear Operations, Inc., Case No. 10-1425 (2nd Cir. Oct. 31, 2011)

Court Rejects "But For" Standard in Federal Sector age Discrimination Claim

An employee who had worked for her government employer for more than 30 years did not receive a promotion that she had sought. The position was instead given to a younger employee. The employee sued her employer, alleging age discrimination, sex discrimination and retaliation. The employee claimed that she was not only deprived of the position due to her age and gender, but that she was also retaliated against because she was not given the promotion due to her prior complaints of discrimination. The U.S. Court of Appeals for the First Circuit held that the employee had failed to meet the burden of establishing her claims. Specifically, although the employee based her claim of age discrimination on a memorandum in which the employer referenced a need for “new blood,” that was not dispositive of age discrimination. Further, the employee failed to overcome the fact that the younger employee received the promotion because he had performed more favorably during the interview and had more experience in the industry at issue. Notably, the court applied the “mixed-motive” analysis, and not the more stringent “but for” standard recently applied by the U.S. Supreme Court in Gross v. FBL Financial Services, Inc., 129 S. Ct. 2343 (2009). The court held that the employee did not have to show that age was the “but for” cause of her failure to receive the promotion because that standard did not apply to federal sector workers. In age discrimination cases, different standards of liability may therefore apply to different employers, depending upon whether the employer is in the private or public sector.

Velazquez-Ortiz v. Vilsack, No. 10-1787 (1st Cir. Sept. 22, 2011)

Court Allows Employee’s Harassment Claim to Proceed to Jury to Determine Causation

During a business dinner, a member of the organization’s board of directors told an employee that he “fantasized about making love to her on a dance floor and wanted to take her to Las Vegas and other places around the world.” The employee declined the board member’s advances, and complained to the human resources department about the harassment. Shortly thereafter, the employer underwent personnel changes, which included the hiring of a new president. In this process, the employee was notified that her position was being eliminated. She sued, alleging sex discrimination, harassment and retaliation under Title VII of the Civil Rights Act of 1964, as amended. With respect to the sex harassment claim, the U.S. Court of Appeals for the Seventh Circuit held that the single sexual advance by the board member did not rise to the requisite level of “severe and pervasive” harassment. However, as to the remainder of the claims, the court found that there existed sufficient questions of fact such that the claims should go to the jury. For instance, the court indicated that the jury should make the determination of whether or not the employee’s termination was causally related to the making of her harassment complaint, particularly given the fact that four new employees were hired at or around the time the employee was terminated. As best practice, employers should ensure that all employees — particularly management-level employees — receive training in anti-discrimination and anti-harassment policies. Employees must be made aware that their conduct, even during off-site or off-duty events, may constitute harassment.

Egan v. Freedom Bank, No. 10-1214 (7th Cir. Oct. 6, 2011)

Employee’s Complaint About Another Employee’s "Imprudent" Remark Insufficient to Support Retaliation Claim

At a company dinner, a supervisor commented to a young male employee that she preferred younger men and had engaged in multiple workplace relationships. A vice president of the company learned of the supervisor’s comments and reported them to management as sexual harassment in violation of Title VII of the Civil Rights Act of 1964, as amended (Title VII). At the same time, he reported that the same supervisor was racially discriminating against a subordinate whom he believed she had treated too harshly. The vice president was subsequently fired due to his inadequate work performance. He then sued the employer alleging that he was fired in retaliation for opposing the supervisor’s sexual and racial harassment of other employees in violation of Title VII and Section 1981. The U.S. Court of Appeals for the Seventh Circuit rejected the vice president’s claim. The court found that the vice president did not engage in “protected activity” when he reported the supervisor’s purported sexual harassment because he could not have reasonably believed that the supervisor’s behavior, “a single instance of sexually charged remarks,” amounted to sexual harassment. The court reasoned that while the supervisor’s remarks were “imprudent,” they were “relatively tame.” Although the court did find that the vice president engaged in protected activity when he reported what he believed to be racial discrimination, the vice president did not present evidence to rebut the employer’s legitimate reason for terminating him, in that his work performance was not adequate. The court consequently dismissed his case. Employers must be certain that adverse action is never taken against an employee for having opposed what he or she reasonably believed to be unlawful discrimination or harassment.

O’Leary v. Accretive Health, Inc., No. 10-1418 (7th Cir. Oct. 19, .2011)

No “Cat’s Paw” Claim Where Supervisor was Terminated for Violating Policy

A supervisor helped an injured employee obtain from the company nurse a work restriction that limited the number of hours the employee could work. However, the supervisor required the employee to work more hours than the restriction allowed. The supervisor alleged that at an intermediate-supervisor’s direction he denied the employee the breaks that the employee was entitled to. The employer discovered that the supervisor had failed to honor the injured employee’s restriction and terminated the supervisor. The supervisor, in turn, sued under the Iowa Civil Rights Act, claiming that he was retaliated against for seeking accommodation for the disabled subordinate employee. Using the “cat’s paw” theory, the supervisor argued that the intermediate-supervisor, who lacked decision-making power, used a manager as a dupe in a deliberate scheme to get the manager to fire him. The U.S. Court of Appeals for the Eighth Circuit rejected the employee’s claim because the intermediate-supervisor neither reported the supervisor’s violation of the work restriction to the manager nor recommended that the supervisor be disciplined. Nor did the manager rely on anything from the intermediate-supervisor in deciding to fire the supervisor. Instead, the manager fired the supervisor because he had admitted violating company policy by forcing the employee to work in violation of his restriction. This case is significant because of the Court’s recognition that the supervisor was required but failed to prove that the manager’s decision was actually influenced by the intermediate-supervisor. Employers must ensure that decision-makers do not make employment decisions based on their own desire, or the desire of a subordinate, to retaliate against an employee for engaging in any kind of protected activity.