It’s your last chance … to avoid retaliation

Last month, the EEOC announced a half-million dollar settlement with BASF Corporation. The agency alleged that BASF retaliated against a poor performing employee by insisting, as part of a “last-chance agreement”, that the employee not file any charges of discrimination with the EEOC. Concerned about the agreement’s effect on his civil rights, the employee refused to sign; the company fired him.

Agreements are wonderful tools to use with our employees. They come in all shapes and sizes—employment agreements, severance agreements, settlement agreements, and last-chance agreements, to name a few. One benefit from an agreement is that it can limit an employee’s ability to bring suit against an employer. For example, many employment agreements contain clauses that waive one’s right to ask for a jury trial. Severance agreements customarily contain releases of claims, waivers of rights, and covenants not to sue.

No matter the agreement, however, there is one clause that it cannot contain—a covenant by the employee waiving his or her right to file a charge of discrimination with the EEOC. Employees have an absolute right to seek vindication of their rights with the EEOC, and a requirement that an employee waive that right is retaliation. You can require that the employee waive his or her right to collect any money as a result of any charge filed with, or lawsuit filed by, the EEOC. Once you cross the line and mandate a waiver of the right to file a charge, you have retaliated.

In this case, this lesson cost BASF $500,000. The EEOC and I do not always see eye to eye. The lesson for employers to take away from this case, however, is valuable, and comes courtesy of the agency:

“The EEOC has an inherent, institutional interest in maintaining open lines of communication with people who believe they may be victims of discrimination,” said John Hendrickson, the EEOC’s regional attorney in Chicago. “That is why employers who attempt to break that line of communication by dissuading employees from filing EEOC charges are breaking the law.  Courts get that, and with this case, we hope more employers will as well.”

The EEOC’s Chicago District Director John Rowe, added, “Cognis presented the victims in this case with a terrible, illegal choice: lose your job or lose your civil rights. Under the law, no worker has to make that kind of choice. Employers would be better served by working to ensure that their employees are free from discrimination, rather than threatening their workers with termination in an effort to make sure that employees don’t complain.”

This post originally appeared on The Legal Workplace Blog.

Lactation rights case teaches valuable lesson on responding to employee complaints

Believing that her employer, Roche Surety & Casualty Co., had deprived her of her right under the Fair Labor Standards Act for a time and place to express breast milk, Danielle Miller put her request in writing via an email to her supervisor. She claimed that the company retaliated against her after she emailed her supervisor with her request. That email stated:

Shannon, I’m scheduled tomorrow all day at the bail office, so therefore, I need to know where I can use my breast pump at and who will cover the office while I’m doing it. I’ll need to be able to do it at least twice while there. Please let me know. Thanks.

In Miller v. Roche Surety & Casualty Co. (11th Cir. 12/26/12) [pdf], the appellate court concluded that Miller had not filed a complaint sufficient to raise the protections of the FLSA’s anti-retaliation provision:

Although the filing of a complaint … need not be in the form of an official complaint, … or even be in writing, some degree of formality is required in order that the employer has fair notice that an employee is lodging a grievance….

Neither the context nor content of Miller’s email put Roche on notice that she was lodging a grievance. Indeed, the circumstances surrounding the email would not have informed a reasonable employer that Miller was filing a complaint. Before sending the email, Miller had never asked for, or been denied, a time or place to express breast milk. She was given breaks at her leisure without question or criticism. Miller decided to express breast milk in her office without notifying any Roche supervisors. She did not complain or ask for a different location….

This case appears to have been an easy call for the 11th Circuit, since no one could possible interpret Miller’s email as a complaint. Nevertheless, this case teaches employers an important lesson: respond when an employee raises an issue, no matter how silly or trivial it may seem. Although the opinion is vague, it is safe to assume that the genesis of Miller’s lawsuit was a lack of any response to her email. Could this company have staved off a lawsuit by a simple reply to the email? Next time an employee communicates an issue with you, think about whether it is worth the risk to let the concern go un-addressed.

[Hat tip: Wage & Hour Law Update and Joe’s HR & Benefits Blog]

The real problem with individual liability

As Senate Bill 383—Ohio’s attempt at comprehensive employment discrimination reform—weaves its way through the legislative process, a lot of blood is going to be spilled. In fact, it started yesterday in the comments to my post discussing the legislation.

One of the key battlegrounds will be the issue of whether Ohio’s discrimination law should provide for liability of managers and supervisors for their own individual acts of discrimination. My friends from the plaintiffs’ bar (and, yes, they are my friends) accuse me of protecting those who should be punished. Nothing could be less accurate.

To put this issue into context, I need to take a step back and explain why individual liability is an issue at all. It is universally accepted that Title VII does not provide for the individual liability of supervisors and managers. Ohio’s counterpart, however, is different. In 1999—in Genaro v. Central Transport—the Ohio Supreme Court held that contrary to federal law, Ohio’s state employment discrimination statute renders supervisors and managers personally liable for their own discriminatory acts.

S.B. 383 eliminates this difference, and brings Ohio’s statute in line with its federal counterpart by eliminating individual liability.

Opponents of this legislation argue that individual liability for managers and supervisors is needed to properly deter discriminatory and harassing behavior and hold accountable those who perpetrate it.

This argument is a fallacy. Employees aggrieved by invidious and intentional discrimination or harassment have claims available against the individual perpetrators—assault, battery, intentional infliction of emotional distress, invasion of privacy, and defamation, to name just a few. These civil remedies are in addition to criminal penalties that one can seek for the most egregious misconduct.

Opponents of this legislation argue that it protects sexual predators.

In addition to being offensive, headline grabbing hyperbole, this argument also is a fallacy. If you believe that the employment discrimination laws should punish predatory behavior, then the availability of a remedy should neither depend on the employment status of the accused, nor the statute under which the suit is brought. Yet, currently, only managers and supervisors can be held liable. One can never sue a non-supervisor or non-managerial co-worker for discrimination, no matter how bad the conduct. Moreover, one can bring suit against a manager or supervisor under state law; federal law provides no such remedy. If we are really concerned about punishing predators, then we shouldn't differentiate between supervisors and non-supervisors, or between state and federal laws.

Opponents of this legislation argue that the only reason employers want to eliminate individual liability is to expand the availability of the removal of cases to federal court.

This argument is also a fallacy. When an Ohio plaintiff sues a non-Ohio company in state court under state law, the employer can take the case to federal court. Adding a local manager or supervisor as a defendant eliminates this possibility. The reality is that if a plaintiff wants to keep a case in state court, he or she will find a cause of action to name a non-diverse individual defendant, whether or not a statutory claim exists against that individual under the employment discrimination statute.

By focusing on the rare example of a workplace sexual predator, opponents of S.B. 383 gloss over the real harm caused by individual liability. Consider this example. Jane Doe, a supervisor for ABC Company, has to fire a poor performing employee. She has counseled the employee repeatedly for the past two years, but his performance has not improved. Unfortunately for Jane Doe, this employee happens to be the only African-American in her department. Five years after the termination, Jane Doe’s doorbell rings at 9 p.m. She answers her apartment door to find a process server, lawsuit in hand. The employee she had terminated five years earlier has sued Jane Doe, in addition to her company, for race discrimination. Ms. Doe had done nothing other than her job. Now, she is forced to defend against allegations of discrimination and bigotry.

This example is much more common than the workplace sexual predator that the opponents of S.B. 383 hold out as the standard bearer. There is little, if any benefit to keeping individual liability as a part of Ohio’s employment discrimination statute, and it is a key facet of this reform that must become part of the law of this state.

Unemployment (or prior lawsuits) as a protected class? Not so fast says the 6th Circuit

Last week, in Berrington v. Wal-Mart, the 6th Circuit considered the issue of whether a company could be liable for refusing to hire someone because he filed an unemployment claim. William Berrington claimed that a Kalamazoo, Michigan, Wal-Mart’s refusal to rehire him after he filed a unemployment claim related to a prior termination wrongfully violated the state’s public policy. The 6th Circuit disagreed. It ignored (more or less) the issue of the public policy at issue, and instead focused on the nature of the employment decision at-issue — a refusal to hire.

Berrington’s appeal presents us with the question of whether Michigan law recognizes a public policy cause of action for an employer’s wrongful refusal to rehire because an individual claimed unemployment benefits…. The common denominator in all the recognized public policy exceptions to at-will employment is the existence of an employment relationship. An employee’s right to be hired or rehired by an employer, on the other hand, has never been recognized as actionable, under common law on public policy grounds…. In fact, neither party has been able to provide a single decision from any jurisdiction enforcing a retaliatory failure to rehire claim in state common law or public policy, absent some other statutory basis.

While this case was decided under Michigan law, it has implications beyond that state. As the opinion points out, there exist no cases from any jurisdiction (Ohio included) recognizing a failure to hire claim under state common law or public policy.

While you might not be presented with the issue of refusing to rehire an ex-employee who filed an unemployment claim, you may have other reasons not to hire someone. For example, you might decide that a potential employee is tainted because he or she filed a lawsuit against a previous employer. If the lawsuit raised issues protected by the employment discrimination statutes, for example, those same statutes’ anti-retaliation provisions likely protect the employee from failure to hire on that basis. What if, however, the prior lawsuit involved something other than protected activity in its own right (e.g., a common law tort such as invasion of privacy, defamation, or intentional infliction of emotional distress)? If a prospective employer locates the old lawsuit on the Internet and refuses to hire someone it perceives as a potential problem down the road, Berrington suggests that the employer might be off the hook for any potential liability stemming from the refusal to hire. If state common law does not recognize a failure to hire claim, as Berrington suggests, then lawsuits against prior employers should be acceptable fodder for hiring decisions (the civil rights statutes notwithstanding).

What qualifies as “opposition” under Title VII?

Last week, I discussed the limits of Title VII’s opposition clause in protecting (or not protecting, as the case may be) employees who make unreasonable or unfounded complaints about discrimination. Today, I am going to discuss another aspect of the opposition clause that can also provide some relief to employers — the specificity of one’s opposition to an act of discrimination.

Trujillo v. Henniges Automotive Sealing Systems NA, Inc. (6th Cir. 8/21/12) [pdf] involves two different allegations of protected activity:

1. After the company’s vice president referred to Mexican plant employees as “those fucking wetbacks,” Trujillo lightheartedly confronted him, resulting in an embarrassed apology.

2. After the same vice president made some disparaging remarks about a Latin American employee, Trujillo spoke to the company’s Vice President of Human Resources.

The 6th Circuit concluded that the only the latter constitutes protected opposition:

We have previously held that advocating for members of a protected class is protected activity for purposes of Title VII retaliation…. Trujillo could have engaged in protected activity if he had complained about Rollins’s comment at the time, even though those comments were not directed at Trujillo personally. However, Trujillo’s own testimony makes clear that he did not complain to Rollins about the comments at the time they were made. With regard to the “wetback” comment, Trujillo admits that he did not communicate that Rollins’s comment offended him, let alone that he was complaining about the racial or ethnic character of the conduct….

In contrast, the district court erred in holding that Trujillo’s statement to Gasperut was not in “opposition” to the alleged racial character of Rollins’s comments…. We have repeatedly held that complaints to human resources personnel regarding potential violations of Title VII constitute protected activity for purposes of establishing a prima facie case of retaliation…. The fact that it was, as the district court characterized it, an “informal conversation” does not change the nature and purpose of the conversation, which was a “discrete, identifiable, and purposive” opposition to racially-oriented language….

Part of the takeaway from this case is that not every response to a tinged or biased remark qualifies for Title VII’s anti-retaliation protections. This case, however, also teaches a different lesson. Opposition can rest in the eye of the beholder. The dissent, for example, would have refused to have protected any of Trujillo’s complaints, and would have concluded that he had merely engaged in non-protected venting:

If the plaintiff had complained that such comments constituted discrimination against him, I would have no quarrel with the majority opinion. If plaintiff had in any way intimated that such remarks could constitute discrimination against other people in the company, I would concur. However, plaintiff himself said: “I kind of was just venting. I was not intending for her to take action.” … Not every casual remonstrance against bad language equates to complaining of illegal discrimination.

What is the best practice? Assume all but the most attenuated of responses to a potentially discriminatory statement qualifies as protected, and do not leave it in the hands of judges or juries to draw these nuanced distinctions. And, if you have to take action against someone who has arguable engaged in protected opposition, involve counsel in the decision making before you draw yourself into a potential lawsuit.

The more you know… Determining when a company knows that an employee engaged in protected activity

“The check is in the mail” is one of the world’s oldest (and some would argue lamest) excuses. In Hicks v. SSP America (6th Cir. 8/3/12), the employer tried a variation in an attempt to avoid an employee’s retaliation claim. The employer argued that it was impossible for it have known that the plaintiff had filed an EEOC charge before it fired her because it has lost its mailbox key and therefore it could not have received its copy of the charge. Without debating the merits of the employer’s argument, the court of appeals still concluded that a factual issue existed on the issue of whether the employer knew of the protected activity, and reversed the trial court’s grant of summary judgment. The court relied, in part, on testimony from Hicks’s direct supervisor that he “‘remember[ed] seeing  it’ (apparently meaning he had seen either the notice-of-charge envelope from the Commission or the charge itself).”

This case teaches two important points:

1. Retaliation claims are dangerous. In Hicks, the appellate court affirmed the dismissal of the underlying discrimination claim. Nevertheless, the employer still faces the risk of a trial on the retaliation claim.

2. When crafting a defense, it has to pass the B.S. test. Unsupported defenses that border on the ludicrous (I lost the mailbox key) better have some meat on their bones. Receipts from a locksmith? An affidavit from the mailman that mail was piling up inside the box? Other corroborating witnesses? The less support you can present, the less likely it will be that a judge or a jury will believe your cockamamie story. And, the less likely they are to believe you, the more zeros you can add to the verdict.

Piercing the bulletproof employee

Retaliation comes in two flavors: participation and opposition. The former protects employees who have “made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under” the relevant statute; the latter protects employees who have “opposed any practice made an unlawful employment practice.” Jackson v. Board of Education of Memphis City Schools (6th Cir. 8/15/12) [pdf] answers the question of how far the opposition clause goes to protect employees who make unreasonable or unfounded complaints about discrimination. It also teaches an important lesson that not every employee who complains about discrimination is bulletproof.

The Memphis City Schools employed Janice Jackson (African-American), as a teacher’s assistant. She worked at a school run by an African-American principal. Ninety-seven percent of the school’s staff was African-American, including 29 of the school’s 31 teacher’s assistants. After being admonished by the principal for unprofessional behavior, Jackson delivered a personal letter, in which she indicated that she felt unfairly singled out because her White co-workers were allowed “duty[-]free breaks,” while African-Americans were “criticized for taking breaks”—“a clear violation of the Civil Rights Act of 1964.” After her transfer to a different school, she sued, claiming retaliation.

The court of appeals affirmed the trial court’s dismissal of her retaliation claim. The court noted that to support a claim of retaliation under the opposition clause, an employee’s opposition must “be based on a reasonable and good faith belief that the opposed practices were unlawful.” In this case, Jackson did not come forward with any evidence that the school principal treated African-American employees differently than White employees. Instead, the court concluded that she was merely addressing a legitimate personnel issue raised by Jackson’s unprofessional behavior.

Critically, the court went out of its way to point out that employers do not always need to fear taking action when faced with a poor-performing employee who happens to complain about discrimination.

To hold that opposition is reasonable when the employer is addressing an apparent and legitimate personnel matter in a way that does not explicitly or implicitly implicate Title VII, with no other testimony or evidence of racial discrimination, would hamper an employer’s ability to address legitimate issues for fear that doing so could leave the employer vulnerable to liability under Title VII.

Many employees believe they can make themselves bulletproof merely by raising the specter of discrimination. They wrongly believe that the anti-retaliation statutes will automatically protect their jobs. Conversely, many employers have a paralyzing fear of terminating a complaining employee no matter the circumstances. Jackson demonstrates that both of these fear can be unfounded. The potential of a retaliation claim certainly ups the ante when terminating an employee who has complained about discrimination. Yet, in the right circumstances and for the right reasons, employers do not need to live in fear of firing a deserving employee, provided that they take the right steps and have the proper documentation.

Does a "good faith belief" about an illegal pay practice support an FLSA retaliation claim?

April Hurd worked as a nurse’s aide for Blossom 24 Hour We Care Center. The company fired her 10 days after she complained about unpaid overtime. Easy case for the employee? If you think this is an open and shut case of retaliation under the FLSA, you are mistaken.

In Hurd v. Blossom 24 Hour We Care Center, Inc. (Ohio Ct. App. 8/2/12) [pdf], the court quickly disposed of Hurd’s retaliation claim:

There is no evidence that Hurd engaged in protected activity by requesting overtime. The U.S. Supreme Court has held that home health care workers are not entitled to overtime compensation because they constitute FLSA-exempt “domestic service” employees. Thus, because Hurd is exempt, her request for overtime did not constitute a protected activity. 

Should this case have been this simple? In Title VII retaliation cases, there is a long-standing rule that an employee engages in protect activity by opposing an alleged unlawful employment practice with a reasonable a good-faith belief that the employer has violated Title VII. Some courts have extended this rule to retaliation cases brought under the FLSA.

If an exempt employee has a good faith belief that he or she is not exempt and complains about missing overtime pay, shouldn’t that employee receive the same benefit as an employee complaining about an alleged unlawful employment practice under Title VII? Shouldn’t the employee’s good faith belief in the perceived illegality be put to the test?

What is the lesson for employers? Despite the ruling in Hurd, if an employee you have classified as exempt complains about overtime pay, do not assume it is safe to retaliate. The court deciding that employee’s case might not be as generous as the court was in Hurd.

Don’t estop believing: employer backs itself into FMLA claim for ineligible employee

I’ve written before about the FMLA’s unique rules for when an employer is covered and when an employee becomes eligible to take leave.

• The FMLA covers any private employer that has 50 or more employees on the payroll during 20 or more calendar workweeks in either the current or the preceding calendar year.
• An employee becomes eligible to take leave under the FMLA once the employee has worked for at least 12 non-consecutive months, worked 1,250 hours during the prior 12 month period, and works at a location where the employer has 50 or more employees within a 75-mile radius.

What happens, however, if a non-covered employer mistakenly grants FMLA leave to an employee, or if a covered employer mistaken grants FMLA to an ineligible employee? If the employer catches its mistake and fires the employee for taking unexcused absences, can the employee sue for retaliation under the FMLA? According to the court in Medley v. County of Montgomery (E.D. Pa. 7/16/12), the answer is yes.

Medley requested intermittent leave because of her son’s serious health conditions. Even though she had worked less than 1,250 hours during the prior 12 months, county officials told her that she qualified for FMLA leave and provided her with various FMLA forms. Once she started taking the intermittent leave, however, the county began to write her up. Within days, the county fired her for taking unauthorized leaves.

The court concluded that Medley could pursue her FMLA retaliation claim under an estoppel theory:

“The doctrine of equitable estoppel is used to prevent ‘one party from taking unfair advantage of another when, through false language or conduct, the person to be estopped has induced another person to act in a certain way, with the result that the other person has been injured in some way.’” …

In the context of the FMLA, “equitable estoppel may, in an appropriate factual scenario, provide a means of redress for employees who detrimentally rely on their employers' misrepresentations about FMLA eligibility.” … “[A]n employer who without intent to deceive makes a definite but erroneous representation to his employee that she is an ‘eligible employee’ and entitled to leave under the FMLA, and has reason to believe that the employee will rely upon it, may be estopped to assert a defense of non-coverage” if the employee reasonably relied on the misrepresentation to her detriment.

This case underscores the importance of training those who manage your FMLA program on the law’s special coverage and eligibility requirements. These employees must intrinsically understand the numerical thresholds and how to apply them. As the Medley case illustrates, you could be bound to mistakes (computational or otherwise), which could prove costly.

[Hat tip: Employment Law Matters]

Associational retaliation is not the FMLA’s peanut butter cup

In Thompson v. North Am. Stainless, the Supreme Court held that Title VII prohibits associational retaliation; an employer cannot retaliate against an employee by taking an adverse action against that employee’s close family member. The FMLA permits an employee to take up to 12 weeks of annual leave for the serious health condition of a close family member (spouse, child, or parent). Putting these two ideas together, one would assume that the FMLA protects against associational retaliation. The FMLA and Title VII, however, do not combine like chocolate and peanut butter to create an associational retaliation FMLA claim.

In Gilbert v. St. Rita’s Professional Services, LLC (N.D. Ohio 6/20/12), the Northern District of Ohio refused to recognize a claim for associational retaliation under the FMLA. Gilbert involved three plaintiffs, all of whom worked for St. Rita’s: Amy Gilbert, the mother of Shannon Kirby, who, in turn, was the mother-in-law of Mary Haught. After St. Rita’s fired all three, they sued. Kirby claimed that St. Rita’s retaliated her under the FMLA because her termination coincided with the end of Haught’s FMLA leave.

The court disagreed. It concluded that because the FMLA’s anti-retaliation language is more narrow than Title VII’s language, which the Supreme Court construed in Thompson, the FMLA does not provide for associational retaliation claims:

The Court rested its holding specifically on the broad “person … aggrieved” language of Title VII, language that is notably absent from the FMLA. In contrast to Title VII, the FMLA delineates certain specific classes of individuals who may bring an action — those who have been denied a right protected by the Act (“interference” plaintiffs) and those who opposed an employer’s unlawful action under the Act (“retaliation” plaintiffs)…. [I]t stands to reason that Congress’s intentional omission of Title VII's broad language in the FMLA specifically prohibits Plaintiffs’ interpretative extension of Thompson.

Not all statutes are created equal. Just because an employee has a remedy under one statute does not mean that the same remedy exists under another. When interpreting statutes, words matter, a lot. 

This case also gives me the opportunity to share this astonishingly bad 32-year-old Reese’s Peanut Butter Cup commercial. Enjoy the nostalgia, and ask yourself how an advertisement this hokey sold anything, let alone helped birth a candy institution.

Abandoning job because of harassment does not support retaliation claim, says the 6th Circuit

Last week, I discussed the 6th Circuit’s most recent pronouncement on same-sex harassment. I noted that while some would argue the Court’s dismissal of the harassment claim is evidence of the need for law against workplace bullying, in reality the Court’s dismissal of the retaliation claim was the more troubling aspect of the opinion. What did I mean?

Recall that in Wasek v. Arrow Energy Services [pdf], when Harold Wasek complained that his male co-worker, Paul Ottobre, was harassing him, his superiors first told him not to “make waves [by] whining,” and later told him he should just “kick [Ottobre’s] ass,” and that they should “duke it out” to “get it out of [their] systems.” In response to this supervisor’s advice, Wasek went AWOL from his Pennsylvania job site. When Wasek later pursued the issues with HR, the regional supervisor told him that it’s “the way the oil field is” and that if Wasek couldn’t handle it he “should find another line of work.” Ultimately, Arrow banned Wasek from working in Pennsylvania and reassigned him to a job site in Michigan. He ultimately quit to work for a different employer.

The Court concluded that Wasek going AWOL, and not his complaints about harassment, caused his job-site transfer:

Wasek’s claim fails, however, because he has not demonstrated a causal connection between his protected activity—the complaints—and Arrow Energy’s adverse employment action—the Pennsylvania ban….

Leaving the work site could be protected activity if leaving itself were a “complaint” about sexual harassment. But this would require a fact-intensive inquiry into whether or not leaving the work site was reasonable under the circumstances.

Lately, we've seen more than one example of employers who avoided liability despite encapsulating some pretty poor HR practices. This case provides another textbook case of how not to respond to an employee complaint. Yes, you can hope to avoid liability based on a legal argument that the employee was not engaging in protected activity because the underlying misconduct was not illegal. That hope, however, misses the point. Anyone who has responsibility for responding to harassment complaints should be troubled by a decision that justifies an excuse such as “that’s the way the oil field is,” and suggests that the complaining employee tough it out or find another job. Employers need to take all complaints seriously, not just those that the employer thinks will cause it legal problems down the road.

Pop quiz: Can you condition a job offer on a withdrawal of an EEOC charge?

Consider the following chain of events:

1. 8/14: Pregnant Employee, armed with a doctor’s note, asks for modified duty, and employer terminates her.
2. 8/15: Employee files an EEOC charge.
3. 8/18: Employer reconsiders, changes its mind, and decides to offer a light-duty position, consistent with its policy to offer available light-duty positions to employees with medical conditions.
4. 8/20 – 8/28: Employer receives notice of EEOC charge.
5. 8/28: Employer communicates offer of light duty position to Employee, but on the condition that she drop her EEOC charge.
6. 8/29 and thereafter: Employee refuses job offer, and is never offered another position with the company.

Did this employer retaliate by conditioning the light-duty job offer on the employee dropping her EEOC charge? According to Chapter 7 Trustee v. Gate Gourmet, Inc. (11th Cir. June 11, 2012), the answer is an unconditional “yes.”

A jury reasonably could find from the sequence of events that Gate Gourmet decided to unconditionally offer Williams the light-duty silverware wrapper position and would have done so but for the fact that she filed an EEOC charge. Once it learned that she had, Gate Gourmet changed what would have been an unconditional offer into a conditional offer in which she could have the position (with back pay) only if she dropped the charge. When Williams would not drop it, Gate Gourmet rescinded the offer. This permissible interpretation of the evidence creates a reasonable inference that the statutorily protected filing of and refusal to settle the EEOC charge caused Gate Gourmet to deny Williams a light-duty position, which is a materially adverse action.

I’ve written before how employers must treat pregnant employees the same (no better and no worse) as other employees based on their ability or inability to work. Because this employer had a policy to offer available light-duty positions to employees with medical conditions, it was required to offer the light-duty silverware wrapper position to Williams. That it decided to rescind its offer only after receiving notice of Williams’s EEOC charge is unconditionally and unlawfully retaliatory.

Vague complaint dooms employee’s retaliation lawsuit

Susanne Pintagro worked for Sagamore Hills Township as an administrative assistant. When a newly hired intern made her feel “uncomfortable and concerned for [her] safety” she took her concerns to the township’s trustees. The trustees determined that because Ms. Pintagro and the intern had to work the same schedule, and gave her the choice of resignation or termination. After Ms. Pintagro resigned, she sued, claiming, among other things, that the township retaliated against her for reporting the intern’s workplace harassment.

In Pintagro v. Sagamore Hills Twp. (Ohio Ct. App. 5/23/12), the court of appeals affirmed the dismissal of her retaliation claim. It concluded that Ms. Pintagro had not engaged in protected activity sufficient to raise the protections of Ohio’s anti-retaliation statute:

It was Ms. Pintagro’s burden … to establish that she engaged in a protected activity, that is, to demonstrate that she “opposed an unlawful discriminatory practice” such as harassment because of her “race, color, religion, sex, military status, national origin, disability, age, or ancestry.” …

Ms. Pintagro also has not presented any authority for her argument that a court should infer discriminatory intent when an employer fails to investigate a claim of workplace harassment…. Even assuming that [the] actions constituted harassment, it is as likely that his conduct was motivated by a personality conflict or other non-discriminatory reasons as it is that it was motivated by prejudice.

In other words, because Ms. Pintagro could not prove that she complained about unlawful harassment, her retaliation claim failed.

Repeat after me:

We will not do what Sagamore Hills Township did in this case.

When an employee comes to you with a complaint about a co-worker, do not ignore it, do not fail to investigate it, and do not fire the employee (or force her to resign). Yes, you might successfully defend a subsequent retaliation lawsuit based on the vagueness of the complaint. But, you might also step in a huge pile. This court refused to interpret a woman’s complaint than a man made her “uncomfortable and concerned for [her] safety” as a complaint about sexual harassment. Another court, however, could just as easily conclude that a jury should have the final say in interpreting that complaint.

I don’t like this opinion; Facebook “like” as free speech?

One of the biggest misnomers that people have about their rights in the workplace relates to free speech and the 1st Amendment. I could comfortably retire if I had a dollar for every time in my career that I have heard, “But I have a right to free speech; I can say what I want and not get fired.” The reality is that private-sector employees have no right to free speech. The 1st Amendment only protects public employees.

The issue of free speech arose in a novel context in Bland v. Roberts (E.D. Va. 4/24/12). B.J. Roberts, the sheriff of Hampton, Virginia, was running for reelection. He learned that some of his employees supported his opponent, Jim Adams, after discovering that they had “liked” Adams’s Facebook page. After Roberts won reelection, he decided not to retain the services of the Adams supporters. The employees claimed that Roberts had violated their free speech rights (as exercised via their Facebook “like” of his opponent).

The court disagreed, concluding that merely clicking the “like” button on a Facebook page is not Constitutionally protected speech:

It is the Court’s conclusion that merely “liking” a Facebook page is insufficient speech to merit constitutional protection…. It is not the kind of substantive statement that has previously warranted constitutional protection. The Court will not attempt to infer the actual content of [the] posts from one click of a button…. For the Court to assume that the Plaintiffs made some specific statement without evidence of such statements is improper.

I was going to write a long, detailed, explanation of how the court got it wrong in this case, how “liking” a Facebook page expresses one’s support for, or positive opinion about, that Page. But, Professor Eugene Volokh, writing at The Volokh Conspiracy, beat me to it:

A Facebook “like” is a means of conveying a message of support for the thing you’re liking. That’s the whole point of the “like” button; that’s what people intend by clicking “like,” and that’s what viewers will perceive. Moreover, the allegation is that the employees were fired precisely because the Sheriff disapproved of the message the “like” conveyed. I would treat “liking” as verbal expression—though it takes just one mouse-click, it publishes to the world text that says that you like something….

To be sure, the message isn’t highly detailed; it doesn’t explain why one is supporting the “liked” person or cause. But the First Amendment protects speech even when the speech is not rich with logical argument, or is even vague or ambiguous….

Putting a “Jim Adams” bumper sticker on one’s car would be constitutionally protected. Putting such a sign on one’s lawn would be constitutionally protected. “Liking” Jim Adams on Facebook is equally constitutionally protected. If the plaintiffs appeal, I expect the Fourth Circuit will reverse the district court on this point.

Thanks Professor Volokh. I couldn’t have said it better myself.

[Hat tip: Lawffice Space and Delaware Employment Law Blog]

Revenge is a dish best never served at all in the workplace

Section 215(a)(3) of the Fair Labor Standards Act makes it unlawful for an employer to “discharge or in any manner discriminate against any employee because such employee has filed any complaint … related to” wages paid or hours worked. It has been over a year since the U.S. Supreme Court held—in Kasten v. Saint-Gobain Performance Plastics—that this anti-retaliation provision covers oral complaints. The Court, however, left open the issue of whether an intracompany complaint suffices as protected activity under the FLSA.

Federal courts are starting to sort out the answer to this important question. And, it doesn’t look good for employers. For example, in Minor v. Bostwick Laboratories, Inc., the notoriously conservative 4th Circuit held that “the remedial purpose of the statute requires that it protect from retaliation employees who file intracompany complaints.”

The court highlighted some the policy considerations behind this ruling:

The protection of internal complaints encourages resolution of FLSA violations without resort to drawn-out litigation—and that failure to protect internal complaints may have the perverse result of encouraging employers to fire employees who believe they have been treated illegally before they file a formal complaint.

While Kasten left open the issue of whether internal complaints suffice as protected activity under the FLSA, lower federal courts are quickly closing this door. Any time you, as an employer, are thinking about exacting revenge on an employee who even arguably engaged in protected activity, think twice, or three times, or as many times as is necessary to dissuade you of your inclination to retaliate. Courts are increasingly resistant to giving free passes to employers who retaliate. If you think you can rely on a legal technicality as a defense (e.g., Kasten), think again. The deck is stacked against you.

What isn’t a “complaint” under the FLSA? An Ohio federal court weights in

In Kasten v. Saint-Gobain Performance Plastics, the United States Supreme Court concluded that the anti-retaliation provision of the Fair Labor Standards Act covers oral complaints — but only if they are “sufficiently clear and detailed for a reasonable employer to understand it, in light of both content and context, as an assertion of rights protected by the statute and a call for their protection.” The issue of what qualifies as a “clear and detailed … assertion of rights” was front and center in Riffle v. Wal-Mart Stores, Inc. (N.D. Ohio 1/24/12).

In Riffle, the only complaints the plaintiff made to her Wal-Mart supervisors were complaints about receiving telephone calls she received at home from co-workers who needed assistance in the cash office. The court concluded that the complaints did not satisfy the threshold established in Kasten.

Plaintiff’s complaints … are insufficient because they are not framed in terms of an FLSA violation as required by Kasten. The complaints plaintiff testified she made to her supervisors could not have reasonably been perceived by defendants as a complaint that plaintiff was not being paid in accordance with the requirements of the FLSA or that defendants otherwise violated the FLSA.

Following Riffle, employers have some guidance as to the types of communications that do not qualify for protection under the FLSA’s anti-retaliation provision. Figuring out what does qualify will prove trickier, and will take years of cases and judicial opinions to sort out.

In the meantime, try not to do the following to your employees who engage in some protected activity:

[Link to YouTube video for those reading in an email]

Unsubstantiated allegations cannot create protected activity (at least according to one Ohio court)

In Veal v. Upreach LLC (10/20/11), an employee claimed that her employer terminated her in retaliation for her contacting the EEOC. The court of appeals, however, did not believe that the employee had presented any evidence in support of her claim that she had engaged in protected activity:

Appellant did not specifically allege or present evidence establishing that she was engaged in a protected activity…. Her complaint and memorandum opposing summary judgment merely alleged that she was terminated after Pitts [her direct supervisor] saw her reading a book on employee rights and overheard her placing a call to the Equal Employment Opportunity Commission during work hours. However, appellant offered nothing to substantiate these claims, nor did she explain how her allegations amounted to conduct protected….

It is refreshing to read an opinion in which a court refused to take a plaintiff merely at her word by requiring some corroboration before sending the case to a jury. Having said that, however, this case—at least in Ohio state courts—is very much the exception, not the rule.

Keeping head in sand risky to employers in discrimination cases

I’ve written before about the honest-belief rule—if an employer honestly believed in the proffered reason for its action, an employee cannot establish pretext, even if the employer’s reason is ultimately found to be mistaken, foolish, trivial, or baseless. Jones v. Nissan N. Am. (6th Cir. 8/19/11) [pdf] illustrates that an employer’s honest belief, though, cannot coexist with a disregard of the cold, hard facts.

In Jones, the employer argued that it could not be liable for an ADA violation by refusing to return an injured employee to work because it held an honest belief that an order of the workers’ compensation court prohibited the employee’s return. The Court disagreed:

Nissan’s defense … was based on the premise that Nissan imposed unsubstantiated medical restrictions on Jones because it believed the chancellor’s decision and order required it to do so…. In the instant case, however, notwithstanding Nissan’s arguments to the contrary, it is clear beyond peradventure that the chancellor’s order did not direct Nissan to restrict Jones from continuing in the trim-fit position he was performing at the time of the workers’ compensation trial. The order only directs Nissan to pay certain benefits…. Most glaringly, Nissan concluded that Jones was restricted from using “hand tools,” despite the fact that the chancellor did not make a single finding with regard to Jones’s ability to use hand tools in his job.

Courts give wide latitude to employers who make informed decisions based on all available facts and circumstances. As this case illustrates, employers who ignore the facts, or fail to make a thorough investigation to uncover all reasonably available facts, don’t fair so well. Strive to be the former; do not succumb to the ease of the latter.

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Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or jth@kjk.com.

Terminating a poor performer AFTER protected conduct? Read this post.

I’ve written before about the difficulty employers face when terminating an employee for performance problems after that employee engages in some protected activity. Because of the specter of a retaliation claim, employers often feel hamstrung, and seldom take the action necessary to rid themselves of a systemic problem employee. Galeski v. City of Dearborn (6th Cir. 8/16/11) [pdf] provides welcome relief to employers facing this dilemma.

Prior to the City’s termination of Daniel Galeski, he had a seven-year history of well-documented performance problems. Two months prior to his termination, Galeski complained that his male supervisor had been sexually harassing him. In the interim, Galeski’s performance problems continued, for which he received reprimands and written warnings. After he failed to improve, and despite his harassment complaint, the City terminated him.

The court agreed with the employer that Galeski’s long history of performance problems, many of which predated his harassment complaints, were fatal to his retaliation claim:

Galeski has a history of violating the City’s policies and being insubordinate…. [I]t appears that the issues that led to Galeski’s termination were inevitable once a more strict supervisor arrived at the Theater…. [H]is job was in danger regardless of his sexual harassment complaints. In light of his repeated issues with failing to wear his uniform and his reaction to his employer revoking his privilege to use the gym, there is no indication in the record that the City of Dearborn’s legitimate reasons for discharging Galeski were pretextual or otherwise invalid.

The lessons for employers?

1. Don’t wait to terminate. Galeski did not become an insubordinate employee overnight. His performance issues predated his termination by 7 years. Yet, a history of weak and non-confrontational supervisors refused to do anything about it. I’m not saying that you should fire an employee at the first sign of trouble, but there is a line between a fair warning and years of capitulation. The former will put you in good stead defending a lawsuit. The latter could result in a judge or a jury asking why you waited so long and looking for an illegitimate reason for the late-in-the-game termination. Just because this scenario worked out for the City of Dearborn does not mean that it will work out well for every employer in every case.

2. Document, document, document. There are few terminations that can survive scrutiny without proper documentation. Your odds as an employer go down exponentially if you pair a lack of documentation with a termination on the heels of protected activity. As the Galeski case illustrates, a poor performer is a poor performer, regardless of complaints about harassment or other protected conduct. Without a legitimate paper trail, however, you will find yourself without the ammunition to do anything about it.

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Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or jth@kjk.com.

Retaliation is the Hannibal Lecter of employment claims

How often do you see a perfectly defensible employment claim go up in flames because of retaliation? Take, for example, MacDonald v. UPS (6th Cir. 7/14/2011) [pdf]. In that case, the Court affirmed the dismissal of the disability discrimination claim and a companion whistleblower claim, but sent the case back for trial on the retaliation claim.

MacDonald engaged in protected activity on September 18, 2006, and was fired the same day. He returned to work on October 16, 2006, and was immediately required to write the safety rules over and over again in a notebook while his coworkers had down time. Viewed in the light most favorable to MacDonald, this requirement was punitive…. Further, within as little as two weeks, UPS ordered that surveillance be conducted on MacDonald, with the goal of disciplining him, and as soon as the security supervisor was available, MacDonald was subject to extreme scrutiny in the form of hidden surveillance cameras and tails. MacDonald again engaged in protected activity on December 18, 2006. Three weeks later, MacDonald was tailed by two supervisors, who looked for and documented the most miniscule of infractions, which were not enforced against other drivers. UPS terminated MacDonald for those infractions the following week, and a week later, MacDonald was sent on a training ride with a supervisor, who fabricated a story of gross insubordination. The following day, MacDonald was removed from service.

Retaliation claims are pure evil. They are difficult to get rid of. Have the lambs stopped screaming?

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Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or jth@kjk.com.