Tuesday, December 16, 2014

Adverse actions come in all shapes and sizes

Consider these facts, taken from Kudla v. Olympic Steel (Ohio Ct. App. 11/20/14). Employee, age 65, is fired from his job as part of a corporate reorganization. Employer has a change of heart, however, and rescinds the termination after Employee lawyers up and alleges age discrimination. He claimed, however, that his employment following his rehire was substantively different, including a forced move out of his prior office into a cubicle, the exclusion from meetings, and the placement on surveillance.

Based on these facts, the court of appeals had little problem deciding that the trial court should have allowed Kudla to present his claim to a jury:

He contends that he was essentially demoted and cites in support of his contention, for example, that many of his responsibilities, except clerical ones, were reassigned to his younger coworkers, and that he was moved out of his office into a cubicle.

Olympic Steel, on the other hand, denies Kudla's demotion claim and cites that his pay was not reduced, his job title did not change, and he still performed important work for the company. The company also contends that putting Kudla in a cubicle was a temporary situation necessitated by the reorganization of the human resources department; as part of the reorganization, Kudla no longer needed to discuss personal, confidential information with employees and managers and, thus, he did not need an office….

[W]e find that a genuine issue of material fact exists as to whether Kudla did suffer an adverse employment action.

It is not impossible to terminate, or otherwise take an adverse action against, an employee on the heels of protected activity. Moreover, something as innocuous as moving an employee out of his office could be deemed sufficiently “adverse” to support a retaliation claim.

Bad employees cannot bulletproof themselves merely by complaining about discrimination. However, you must have a rock-solid legitimate non-retaliatory and non-pretextual reason for your action to survive the lawsuit that is likely to follow.