D T ,

DEVELOPING THEORIES OF DISCRIMINATION, INCLUDING
ASSOCIATIONAL DISCRIMINATION AND RETALIATION
American Bar Association
8th Annual Labor and Employment Law Conference
November 5-8, 2014
Paul W. Mollica © 2014
Outten & Golden, LLP
203 North LaSalle Street, Suite 2100
Chicago, Illinois 60601, (312) 924-4888
email: [email protected]
Blog: http://www.employmentlawblog.info/
I. What Constitutes a “Materially Adverse Action”? (Burlington Northern)
Hostile work environment/aggregation/cumulative weight/totality of events
Booth v. Pasco Cty., No. 12-13389 (11th Cir. July 3, 2014): Union public posting names of
firefighters that filed EEOC charges against union, inviting retribution by co-workers,
committed adverse action: “Local 4420 members Jerry Brown and Anthony Booth have filed
a Charge claiming unspecified discrimination with the U.S. Equal Employment
Opportunity Commission against the Union and the County. The Executive Board and our
attorney feel it is a frivolous claim with no grounds for support and we are extremely
confident in winning but will still have to defend the charges. This could be very costly and
generate a legal bill of $10,000 or more. If it becomes too costly the Union may have to
assess its members additional fees to offset the cost. We will update you as it progresses.”
Laster v. City of Kalamazoo, , 746 F.3d 714 (6th Cir. 2014): “Facing heightened scrutiny,
receiving frequent reprimands for breaking selectively enforced policies, being disciplined
more harshly than similarly situated peers, and forced to attend a pre-determination
hearing based on unfounded allegations of wrongdoing might well have dissuaded a
reasonable worker from making or supporting a charge of discrimination.”
Ellis v. Houston, 742 F.3d 307 (8th Cir. 2014): “[Ellis] testified that he was singled out for
additional work details, that the supervisors would walk by fifteen available white
employees on the yard in order to direct him to take on extra tasks, that when paired with
white partners he was given the majority of the work, and that he was consistently forced to
take unpopular details, such as ‘cold storage.’ Ellis was also repeatedly singled out for
discretionary jobs which drew him away from his regular duties, ‘running’ him across the
prison yard from one task to the next. He was called on by the supervisors to do arduous
tasks back to back and with no break, even when other officers were available for the
work.”
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Pérez-Cordero v. Wal-Mart Puerto Rico, Inc., 656 F.3d 19 (1st Cir. 2011): “Although PérezCordero did not suffer a tangible employment detriment in response to this protected
activity, such as a retaliatory firing, we have previously held that the escalation of a
supervisor's harassment on the heels of an employee's complaints about the supervisor is a
sufficiently adverse action to support a claim of employer retaliation.”
Goeman v. Chippewa Falls Area Unified School Dist., No. 13–cv–168–jdp, 2014 WL 3556395
(W.D. Wisc. July 18, 2014): School District informed her that she could no longer attend
certain work-related meetings and events, including those that she had been attending
consistently for years. These included “collaboration meetings among a broad group of
school employees generally occurred twice a month. Topics of discussion regularly
included student attendance and programs such as SLIP (a tutoring program), which were
a significant part of Goeman's job responsibilities.” After her termination, Goeman asked to
work at school extracurricular events, but the School District refused to employ her for
those events.
Komis v. Perez, No. 11–6393, 2014 WL 3437658 (E.D. Pa. July 15, 2014): Incidents of “failure to
promote, improper discipline, denial of training, and wrongful placement on a performance
improvement plan,” together with “other discriminatory acts that may not be individually
actionable, including name-calling by her coworkers, her supervisors' failure to respond to
such name-calling, and marginalization by her coworkers and supervisors through a
change of assignments, exclusion from meetings, and the reassignment of work.” These acts
may be “aggregated,” and considered along with the direct acts alleged by plaintiff, “to
make out a hostile work environment claim” so long as they are all linked as part of a
pattern, i.e., not alleged as “discrete” acts of retaliation standing alone.
De Markoff v. Superior Court of California, No. 1:11–CV–02017 AWI MJS, 2014 WL 2895200
(E.D. Cal., June 25, 2014): “First, on August 9, 2010, the day Plaintiff filed the discrimination
complaint with the Superior Court, Cleek (the Court Executive Officer) asked Plaintiff to
attend a meeting with Cleek, Scalia, and Vitale (the Human Resources Manager) to discuss
Scalia's transition into the CFO position. Doc. 1 (Complaint), 4:23–26. Second, on September
1, 2010, Plaintiff was the only employee who was emailed regarding his inaccurate sign-out
practices although others had also failed to follow the procedures as instructed. Doc. 1, 5:4–
6; Doc. 52, 25:25–26. Third, on January 12, 2011, Scalia had a meeting with Plaintiff
regarding potentially inappropriate comments he made in a public place a month prior.
Doc. 1, 5:7–10. Fourth, on January 18, 2011, Plaintiff had a meeting with Scalia and Jasso
regarding his “exceeding the scope of assignments” and “not following the Superior Court's
chain of command.” Doc. 1, 5:11–14. Fifth, on January 19,2011, Scalia told Plaintiff that a
project he had been assigned a month prior was not within the scope of his delegated
assignment. Doc. 1, 5:15–19. Sixth, on February 14, 2011, the accountants' workstations were
reconfigured, which Plaintiff claims moved him near to Scalia and segregated him. Doc. 1,
20–21. Seventh, on May 3, 2011, Cleek asked Plaintiff why he was one of the largest users of
LexisNexis in a certain timeframe. Doc. 1, 5:22–26. Eighth, on September 30, 2011, Cleek
denied Plaintiff's request to attend a training. Doc. 1, 6:1–3.”
Brown v. Joel Tanis & Sons, Inc., No. 2:13–cv–02984 (WJM), 2014 WL 2705262 (D.N.J. June 13,
2014) Plaintiff alleged that “after he complained about the harassment, [supervisor]
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threatened to ‘pack that N*****r's paddles’ and began taking pictures of Plaintiff at work.
These acts are sufficient to allege a retaliation claim against Dages. And at least one of these
alleged acts—that Moving Defendants cut Plaintiff's brakes —occurred within the two-year
statute of limitations for NJLAD claims.”
Liscar v. Pediatric Acute Care of Columbus, P.C., No. 4:12–cv–08 (CDL), 2014 WL 1393110,
(M.D.Ga. Apr. 9, 2014): Adverse “actions included her superiors taking away a promotion
opportunity, undermining her authority with employees she supervised, and increasing her
work hours, among others.”
Sterner v. County of Berks, Pa., No. 13–1568, 2014 WL 1281241 (E.D. Pa. Mar. 28, 2014):
“Sterner also has alleged numerous adverse actions, such as changes to his job duties, an
increase to his workload, removal from access to Graffius' calendar, relocation from a
private office to a cubical, Graffius calling him someone's “butt-buddy,” requiring him to
sign in and out each day, the cessation of “flex” scheduling, and mandated lunch period.
…These actions may have dissuaded a reasonable person from supporting a charge of
discrimination.”
Buckner v. Lew, No. 5:13–CV–199–FL, 2014 WL 1118428 (E.D.N.C. Mar. 20, 2014): “In
support of her retaliation claim, Plaintiff alleges that her manager attempted to dissuade
her from pursuing her EEO complaint by telling Plaintiff that she might “win the battle,
[but] would lose the war” and that he “would hate to see the quality of [her] work suffer
due to spending time and energy on an EEO complaint.” (Compl. at 6.) Plaintiff also alleges
that after filing her EEO complaint, she received a negative quality review, which was
retracted after Plaintiff challenged it; that she was assigned a larger caseload than
coworkers at the same grade level; that she was removed from a case without notice
immediately prior to a scheduled meeting with a taxpayer and the taxpayer's attorney; that
her manager refused to approve work submitted by Plaintiff and raised his voice at her;
that Hunt repeatedly attempted to meet with Plaintiff to discuss the promotion decision
that formed the basis of Plaintiff's EEO complaint; and that management refused to excuse
Plaintiff from a Town Hall meeting called by Hunt just days before Plaintiff's EEOC
hearing, notwithstanding that Hunt was named as a discriminating official in Plaintiff's
EEO complaint. (Compl. at 6–7.)”
Pallatto v. Westmorland County Children's Bureau, No. 2:11cv1206, 2014 WL 836123 (W.D. Pa.
Mar. 4, 2014): “A reasonable jury could find that the numerous employment actions levied
against plaintiff after she applied for FMLA leave were sufficient to create an overall
scenario that would dissuade a reasonable worker from exercising her rights. Plaintiff's
schedule was altered, requiring her to meet with clients at times when she was unavailable.
She was expected to keep her case files updated by the day while other caseworkers were
given a month. Plaintiff was prohibited from having co-workers assist her in completing
her work even though this was a common practice within the workplace. Plaintiff's
immediate supervisors (mainly Bianco and Dominick) harassed her about missing work
and told her to quit and find a job she could perform. Finally, her longtime schedule was
changed, requiring her to work until 6:00 p.m. Taking all of these events in their totality, a
reasonable jury could find that plaintiff was subject to materially adverse employment.
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REMEMBER – Different limitations period accrual date for harassment (vs. discrete acts);
charge and allege retaliatory events in the alternative.
Reassignment/extra duties
DeLeon v. Kalamazoo Cnty. Rd. Comm’n, 739 F.3d 914 (6th Cir. 2014): In new job, “Deleon
provided evidence that he was exposed to toxic and hazardous diesel fumes on a daily
basis. R. 64, Ex. 1, pp. 230–233. He testified further that he had to wipe soot out of his office
on a weekly basis. Id. at 231. As a result, Deleon claims that he contracted bronchitis, had
frequent sinus headaches, and would occasionally blow black soot out of his nostrils. Id. at
231. The work conditions were corroborated by another employee, Timothy Landrum, who
compared the air quality in the position to ‘sticking your head in an exhaust pipe,’ and
sitting ‘behind a city bus.’ R. 64, Ex. 8, p. 31. Deleon avers that his previous position never
exposed him to the level of hazard presented by the new position. R. 64, Ex. 1, p. 230. The
testimony presents sufficient indication that the work environment was objectively
intolerable.”
Alexander v. Casino Queen, Inc., 739 F.3d 972 (7th Cir. 2014): Pattern of “reassigning
[plaintiffs] to less lucrative areas of the casino floor” and “removing the high‐tip dollar
slots from Alexander’s assigned area” may be retaliatory where they cut into tip income.
Gilreath v. Cumberland County Bd. of Educ., No. 5:11–CV–627–BR, 2014 WL 3779090 (E.D.N.C.
July 31, 2014): Plaintiff assigned, without extra pay, “arbitrary and ongoing extra duty
assignments ... were inconsistent with assignments given to other teachers at his assigned
school and/or inconsistent with assignments given to other band directors within
Cumberland County schools....”
Taylor v. Burwell, No. PWG–13–1998, 2014 WL 3547337 (D. Md. July 16, 2014): Being
assigned clerical duties for six days and being denied “acting” leadership title stated a claim
for “materially adverse action.”
Lamptey v. Corrections Corp. of America, No. CV–13–02156–PHX–NVW, 2014 WL 2616455 (D.
Ariz. June 12, 2014): Employer “posted [plaintiff] up more often and to dangerous and
previously unassigned situations, reassigned her favorable schedule, and withdraw one of
her job responsibilities.”
Arthur v. Whitman County, No. CV–12–365–LRS, 2014 WL 2533334 (E.D. Wash., June 05,
2014): Being ordered to work at home for four months to avoid contact with alleged
harasser.
Lewis v. New York City Transity Authority, No. 04–cv–2331(SLT)(MDG), 2014 WL 1343248
(E.D.N.Y. March 31, 2014): Bus driving to depot: “Lewis described working in the bus depot
as ‘stressful, hectic and unpredictable;’ she performed janitorial tasks such as washing
windows and cleaning buses—tasks not typically performed by bus drivers. (Lewis Decl.
¶¶ 27–28.) The bus depot was ‘full of noxious fumes.’ (Id. at 33.) Additionally, her supervisors told her that her colleagues were resentful of her because her position was created by
taking away overtime opportunities from other Transit Authority employees. (Id. at ¶ 32.)
Lewis was required to sign in and out of work on sign-in sheets that were made only for
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female Muslim employees when she arrived, took a meal break, or left work, while nonMuslim bus operators were not subjected to this requirement. (Id. at ¶ 29.) She also was
required to seek permission for bathroom breaks—a requirement reserved only for her.”
Denial of job perks
Rodriguez-Vives v. Puerto Rico Firefighters Corps of Puerto Rico, 743 F.3d 278 (1st Cir. 2014):
Refusal of superiors to allow employee, like others, to travel on fire vehicles to get lunch,
and being assigned to cook and clean rather than to perform the same jobs as others in the
station plausibly alleged an adverse employment action.
Goonan v. Federal Reserve Bank of New York, No. 12–CV–3859 (JPO), 2014 WL 3610990
(S.D.N.Y. July 22, 2014): Denial of telecommuting privileges is materially adverse.
St. Juste v. Metro Plus Health Plan, No. 10–CV–4729, 2014 WL 1266306 (E.D.N.Y. Mar. 28,
2014): “Construing the facts in the light most favorable to Plaintiff, requiring him to use
unpaid leave, rather than compensatory time, to attend Friday prayers does have a material
impact on Plaintiff since he is being asked to give up actual pay which is a material benefit.
A reasonable employee could well be dissuaded from complaining about discrimination if
he were required to give up enjoyment of the use of compensatory time and forego pay in
order to attend weekly prayer.”
Poor reference
Taylor v. Geithner, 703 F.3d 328 (6th Cir. 2013): Plaintiff “applied for and was rejected from
fifty-two positions within the IRS and that, during the same time period, Shields gave
Taylor a negative reference for the Presidential Classroom Program.”
Performance Improvement Plan/poor evaluation
Bell v. Lockheed Martin Corp., No. 08–6292 (RBK/AMD), 2014 WL 2920503 (D.N.J. June 27,
2014): Boss “recommended rating Plaintiff in the lowest possible category on a ‘nine-block’
chart that assessed employees' potential and performance as part of this review,” which
could later effect advancement opportunties.
Bowen-Hooks v. City of New York, No. 10–CV–5947 (MKB), 2014 WL 1330941 (E.D.N.Y. Mar.
31, 2014): “LaRose, as the Chief of Operations, a supervisor two levels above Plaintiff and
one or two levels below the Sheriff, went out of his way to include highly detailed
information about three infractions by Plaintiff in her 2009–2010 evaluation, comments that
Plaintiff's own supervisor refused to include in her evaluation. Judging from Plaintiff's
evaluations from previous years, the inclusion of such specific written feedback did not
comport with Plaintiff's prior evaluations. In light of such atypical scrutiny and written
criticism in Plaintiff's evaluation, the Court will assume that a reasonable employee would
be dissuaded by such attention.”
Lehman v. Bergmann Associates, Inc., No. 13–CV–482S, 2014 WL 1315385 (W.D.N.Y. Mar. 31,
2014): “Lehman alleges that the PIP unjustly criticized her; that she was the only upperlevel supervisor to be given a PIP; and that the PIP was an act of discipline … Lehman
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received her lowest bonus—an undisputed ‘condition of employment’—just a few weeks
after being placed on the PIP.”
Bosco v. Lincare Inc., No. 1:12–CV–059 (WLS), 2014 WL 1281446 (M.D. Ga. Mar. 27, 2014);
“When Plaintiff returned from medical leave on May 5, 2010, she was placed on a 60–day
action plan, though focus center goals are typically annual goals. Defendant does not deny
that focus center goals are typically annual, but contends that Plaintiff was not prejudiced
by the 60–day schedule because her goals were reduced proportionately to 60 days. (Doc. 54
at 13 n. 4.) Defendant did not state, however, how it was determined that Plaintiff would
only have 60 days, following a three-month absence, to meet performance goals that if not
met, could result in termination.”
Fledderman v. Daiichi Sankyo, Inc. 930 F.Supp.2d 899 (S.D. Ohio 2013): “As for the September
24, 2009 Warning Letter, it proscribed a formal action plan with which Plaintiff had to abide
in order to be taken off a warning. The number of requirements she was asked to satisfy,
without any specific criteria for satisfying them, suggest that her duties became more
arduous, which could have discouraged reports of discrimination. Moreover, as noted
above, being placed on a performance plan is sufficient to meet the relatively low bar for
adverse actions in the retaliation context.”
Perret v. Nationalwide Mut. Ins. Co., No. 4:10cv522, 2012 WL 3954884 (E.D. Tex., Aug. 7,
2012), adopted at 2012 WL 3930630 (E.D. Tex., Sept. 10, 2012): Supervisor “placed Plaintiff on
a PIP on April 22, 2010, less than one month after Defendant received his charge of
discrimination and the next day following Plaintiff's interview with the ethics investigator.
Viewing Plaintiff's evidence in the light most favorable to his case, the Court finds that
there is a material fact issue present with regard to a prima facie case for retaliation.”
Threats of adverse actions
Rivera v. Rochester Genesee Regional Transp. Auth., 743 F.3d 11 (2d Cir. 2014): Plaintiff
presented testimony “that [boss] Tiberio suggested that he could lose his job for filing
complaints of discrimination. Talton’s testimony echoed a previously filed EEOC
charge in which he alleged that Tiberio had once indicated ‘that indicated ‘that
[Talton] could get fired for the filing of the EEOC charge’ and ‘said that ‘this is your job
too.’’”
St. Juste v. Metro Plus Health Plan, No. 10–CV–4729, 2014 WL 1266306 (E.D.N.Y. Mar. 28,
2014): While “rescinded discipline cannot constitute material adversity, where an employee
is never placed in an active disciplinary process … here, Plaintiff's counseling
memorandum was never formally rescinded. Rather, his counseling session never took
place because he was suspended for other reasons prior to that scheduled date. It is unclear
whether the charges against Plaintiff were ever formally ‘rescinded,’ although it appears
that the counseling session was never re-scheduled once Plaintiff was reinstated to his
position in late 2009 or early 2010. In any event, even without the subsequent counseling
session, for purposes of Plaintiff's retaliation claim, the Court will consider the counseling
memorandum issued to him on August 17, 2009, an adverse action.”
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Kellman v. Metropolitan Transp. Auth., No. 07 Civ. 3561(DAB), 2014 WL 1243698 (S.D.N.Y.
Mar. 26, 2014): “Here, Plaintiff has raised a genuine issue of material fact as to whether, in
the context at hand, a threat of transfer to the Communications Unit would have dissuaded
a reasonable worker from making a charge of discrimination. Whereas Plaintiff's
assignment in Grand Central involved supervising patrol officers and conducting arrests
and investigations, the Communications Unit was an administrative unit that involved
dispatching other police officers to respond to major incidents. (Alvarado Decl. ¶ 19;
Barreto Dep. 23:7–13; Dunn Dep. 234:6–22; Kellman Decl. ¶¶ 21, 24.) Plaintiff affirms that
she perceived an involuntary transfer to the Communications Unit “as a demotion because
such an assignment would provide [her] with no opportunity to do investigations or make
arrests which [she] wanted to do to further [her] aspirations as a detective.” (Kellman Decl.
¶ 24.) A reasonable worker also could have perceived the threatened transfer as a demotion,
because the submitted evidence shows that it would have entailed diminished supervisory
and investigatory responsibilities and increased administrative duties.”
Russell v. Geithner, No. 2:09–cv–00975, 2012 WL 5497769 (S.D. Ohio Nov. 13, 2012):
Supervisor’s “termination proposal unquestionably constitutes an adverse employment
action. It is beyond dispute than an employee would feel deterred from engaging in
protected activity if in response her supervisor would recommend her dismissal.”
Jackson v. New York State Office of Mental Health, No. 11 Civ. 7832(KNF), 2012 WL 3457961
(S.D.N.Y. Aug.12, 2012), adopted at 2012 WL 5862741 (S.D.N.Y. Nov.15, 2002): Negative
evaluation and threat of another sufficiently alleged retaliatory adverse action.
Commencing investigation/extra scrutiny
Richardson v. New York State Office of Mental Health, No. 6:11–cv–1007, 2014 WL 3818928
(GLS/ATB) (N.D.N.Y. Aug. 4, 2014): “[A]n investigation of an employee could constitute an
adverse employment action because ‘[b]eing investigated by one's employer could deter a
reasonable person from complaining about discrimination because investigations can be
intrusive and intimidating.’”
Shafer v. American University in Cairo, No. 12–CV–9439 (VEC), 2014 WL 3767007 (S.D.N.Y.
July 31, 2014): “In September 2011, … the art program faculty convened to determine the
membership of faculty committees and the direction for the art program for the following
year. … At the beginning of the meeting, Dean Ferguson announced that the meeting
would be recorded. According to Shafer, when she objected, Ferguson ‘started yelling’ that
the meeting was being recorded on the advice of counsel because Shafer was suing the
school. … In context, construing the evidence in favor of the non-moving party, a
reasonable jury could find that Ferguson's decision (even though apparently based on
advice of counsel) to record the PVA faculty meeting constitutes a ‘materially adverse
action’ under White. By attempting to record the meeting and doing so expressly because
Shafer filed an EEOC complaint, Ferguson sent a clear signal to Shafer and to the other
faculty members present that complaints about discrimination will be met with hostility
and will turn the complaining faculty member into a pariah who cannot be trusted to
faithfully report what happened even in a pedestrian faculty meeting. That sort of hostile
reaction to an EEOC complaint is exactly the sort of reaction that could dissuade an
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employee in the future from attempting to vindicate his or her rights not to be
discriminated against.”
Yates v. Alabama Agr. and Mechanical University, No. CV–13–J–981–NE, 2014 WL 1338103
(N.D. Ala. Apr. 2, 2014): Calling Campus Police to investigate unfounded allegation of
irregularities in use of university credit card and vehicle was materially adverse.
Odom v. Holder, No. 2:11–CV–3086–SLB, 2014 WL 1233709 (N.D. Ala. Mar. 25, 2014):
“The court finds that a reasonable person may find an IIS investigation, especially if
unwarranted, to be sufficient to dissuade him or her from filing an EEO charge of
discrimination.”
Weber v. City of New York, No. 11–CV–5083 (MKB), 2013 WL 5416868 (E.D.N.Y. Sept. 29,
2013): Commencement of Department of Education (DOE) Office of Employment
Opportunity investigation deemed sufficiently adverse.
Eldridge v. Rochester City Sch. Dist., 968 F. Supp. 2d 546 (W.D.N.Y. Sept. 13, 2013) (“I
conclude that the pressure of an internal investigation, coupled with a veiled threat of an
involuntary transfer, could dissuade a reasonable employee from engaging in protected
activity, and thus adequately alleges an adverse employment action for the purposes of the
Section 1983 retaliation claim.”).
Cutting off channels to complain
Badii v. Rick's Cabaret Intern., Inc., No. 3:12–CV–4541–B, 2014 WL 550593 (N.D. Tex. Feb. 11,
2014): “Stern's refusal to permit Badii to contact higher management is likely an adverse
employment action. While some Fifth Circuit precedent would suggest otherwise, many of
these cases were either decided before the Supreme Court's decision in White or involved
distinguishable fact patterns. … Stern's alleged behavior directly prevented Badii from
making a charge of discrimination to higher management, and Badii testified that he
hesitated to contact higher management because of the possible repercussions he would
experience from Stern.”
Litigation/charges
Lin v. Rohm and Hass Co., No. 2:11–cv–3158–WY, 2014 WL 1414304 (E.D. Pa. Apr. 14, 2014):
“The Montgomery County Litigation requests at issue in this case—which relate to the
production of the plaintiff's closely-held business information to her competitor, the
imposition of monetary sanctions on the plaintiff, and the enjoinment of the plaintiff's
research—are sufficient to establish a prima facie case that they ‘might well have dissuaded
a reasonable [scientist-employee] from making or supporting a charge of discrimination.’”
Calhoun v. McHugh, No. 1:11–CV–4134–VEH, 2014 WL 838763 (N.D. Ala. Mar. 4, 2014):
AWOL charges, later withdrawn, were materially adverse.
Calling law enforcement
Perez v. ACME Universal, Inc., No. 12-00008, 2014 WL 1378241 (D. Guam Apr. 8, 2014):
Under FLSA, “contacting immigration authorities” or “reporting an employee to
immigration authorities with a retaliatory motive constitutes prohibited conduct.”
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EEOC v. Global Horizons, Inc., No. 11–00257 LEK, 2014 WL 1118009 (D. Haw. Mar. 19, 2014):
” In response to the internal complaints, the Global Horizons supervisors threatened to
deport the workers who complained or to transfer them to farms where they would work
less and be paid less. When Global Horizons learned about the complaints to the Labor
Department and that the Del Monte Claimants were cooperating in the Labor Department's
investigation, Tubchumpol told them that they were not to talk to anyone from the federal
agency and that anyone who did so would be deported.”
Post-employment retaliation
Carswell v. Monumental Life Ins. Co., No. 13–378, 2014 WL 3378694 (W.D. Penn. .July 9,
2014): Resisting unemployment benefits.
REMEMBER – A downside to a generous definition of retaliation is that each “discrete”
act may require a fresh/amended charge. Eisenhour v. Weber Cnt'y, 739 F.3d 496 (10th Cir.
2013); Payne v. Salazar, 619 F.3d 56 (D.C. Cir. 2010). But see Jones v. Calvert Group, Ltd., 551
F.3d 297 (4th Cir. 2009) (plaintiff did not require new charge for post-charge retaliation).
II. What Is a “Protected Activity”? (Crawford v. Metrop. Gov’t of Nashville)
Opposition
Montell v. Diversified Clinical Servs., Inc., Nos. 13–6186, 2014 WL 2898525 (6th Cir. June 27,
2014): Employee had good-faith belief that she was sexually harassed, where boss told her
that he was “turned on by a woman in a red dress and heels, while Montell was wearing a
red dress and heels” and “prefaced the comments by acknowledging that she could get him
in trouble with HR for making the comments.”
Rodríguez–Vives v. Puerto Rico Firefighters Corps, 743 F.3d 278 (1st Cir. 2014): Prior lawsuit,
while it did not allege a violation of Title VII (instead, suing under 42 U.S.C. § 1983 and
Puerto Rican law), still protect opposition activity.
Sayger v. Riceland Foods, Inc., 735 F.3d 1025 (8th Cir. 2013): Witnessing discrimination against
others - “We conclude that someone who has substantiated a complaint of a civil rights
violation has demonstrated opposition to that violation and acted to vindicate the rights of
minorities. Such an individual should therefore receive the same protection against
retaliation as the person who filed the original complaint. If employees who give evidence
or respond to questions during internal inquiries into alleged discrimination are not
protected from retaliation, it would impede any internal efforts to address discrimination.”
Wasek v. Arrow Energy Services, Inc., 682 F.3d 463 (6th Cir. 2012): Mistaken belief - The
question is therefore whether Wasek could have had a reasonable, good faith belief that he
was being sexually harassed. He definitely could have. Wasek suffered unwanted sexual
touching and communication in the workplace on multiple occasions. And he made it
known both to his alleged harasser and his immediate supervisor that he did not find the
behavior appropriate. Further, Ottobre's touching was particularly offensive. This was not a
football coach smacking a player on the buttocks before heading onto the field, or co-
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workers brushing up against each other when working in tight quarters. Indeed, *470 it is
difficult to imagine a work place social context where simulated sodomy would be
acceptable, let alone among an all-male crew on an oil rig. See Oncale, 523 U.S. at 81, 118
S.Ct. 998 (determining the objective severity of harassment “requires careful consideration
of the social context in which a particular behavior occurs”). And any contention that this is
“the way the oil field is” was not supported by evidence in the record. Rather, the facts
demonstrate that Wasek could have reasonably believed he was sexually harassed.
Trujillo v. Henniges Auto Sealing Sys. N. Am., Inc., 495 Fed. App'x 651 (6th Cir. 2012):
Complaining that employee more than once said “inappropriate or derogatory things about
other races” is opposition activity.
Collazo v. Bristol-Myers Squibb Mfg., Inc., 617 F.3d 39 (1st Cir. 2010): Plaintiff's "persistent
efforts to help [employee] Hiraldo initiate her sexual harassment complaint and urge
Human Resources to act upon that complaint as resistant or antagonistic to the complainedof conduct" was protected "opposition" activity under Title VII's anti-retaliation section.
Employer argued that plaintiff was mostly silent during the first meeting with HR, and thus
was not "opposing" anything. But protected activity was "repeatedly accompanying
[employee] to Human Resources to file and pursue her sexual harassment complaint."
Employer also argued that an employee who was simply carrying out his duties (here, the
plaintiff was a first-report in the company's anti-harassment policy) cannot be deemed as
"opposing" a discriminatory practice simply by carrying out his duties. Panel declines to
rule whether such a "furtherance of supervisory responsibilities" limitation ought to placed
upon Title VII (though it casts doubt on this point, in a footnote), but held regardless that
plainiff went above-and-beyond his management duties in following up the complaint.
Hutchins v. DirecTV Customer Service, Inc., No. 1:11–CV–422–REB, 2014 WL 3572045 (D.
Idaho July 21, 2014) (asking coworkers to submit letters in support of plaintiff’s complaint
during break times in non-threatening way was protected activity, even if one or more
individuals complained that they found the request upsetting or intimidating; firing
employee for making requests held to be retaliation: “The Court does not doubt Ms.
Bickler's testimony that she was upset and felt intimidated after Hutchins approached her
and requested a letter. However, a person who is hypersensitive, or who develops an
unrealistic anxiety or concern or an otherwise unjustified reaction to a co-employee's
request for assistance, cannot be the fulcrum for deciding whether a plaintiff's actions are
no longer protected under the anti-retaliation provisions of the ADA.”)
Livingston v. Marion Bank and Trust Co., No. 2:11–cv–1369–LSC, 2014 WL 3347910 (N.D. Ala.
July 8, 2014): Employee engaged in protected activity by telling president to quit hitting on
her or she would tell the president’s wife about the sexual advances.
Carvajal v. Pride Industries, Inc., No. 10CV2319–GPC(MDD), 2014 WL 1921732 (S.D. Cal. May
14, 2014): Referring coworkers to Epilepsy Society for assistance in getting workplace
accommodations was protected activity.
Russaw v. Barbour Cnty. Bd. of Educ., 891 F. Supp. 2d 1281 (M.D.Ala.2012): Declaring in
advance that he would not lie about reason for employee’s termination in course of internal
investigation of sex harassment constitutes opposition. (But see Carter v. Target Corp., 541
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Fed. App’x 413 (5th Cir. 2013) (African-American female former employee's refusal to
falsify performance reports did not constitute a protected activity under Title VII, and thus
did not support employee's retaliation claim, absent indication that the request to falsify the
reports was racially motivated).)
Ezuma v. City Univ. of New York, 665 F. Supp. 2d 116, 122–23 (E.D.N.Y.2009): Department
chair’s reporting of complaint about harassment through employer’s anti-harassment
policy protected, over argument that use of in-house complaint process was carrying out
school policy, not contesting it: “Although the obligation placed upon departmental chairs
under the College's policy is broad, it cannot be the case that the adoption of an antiharassment policy with mandatory reporting obligations immunizes the organization from
claims of retaliation. If it did, every organization would have such a policy requiring all
employees to report all acts of discrimination (and some do). The only workable test is to
examine the motivation of the reporting employee and determine if he was being an
advocate for the alleged victim, or acting with the purpose of supporting his employer, i.e.,
being a “good corporate citizen” in making the report. That is going to be a question of fact
unless the facts permit no reasonable conclusion other than that the employee was pursuing
his organizational role.”
Riscili v. Gibson Guitar Corp., 605 F. Supp. 2d 558 (S.D.N.Y.2009): Informal conversation with
office manager about perceived harassment at company reception event (per NY state law).
Opposition: Employee’s own investigation/disclosure of confidential information
Loudermilk v. Best Pallet Co., LLC, 636 F.3d 312 (7th Cir. 2011): Plaintiff may have been
engaged in protected activity when he took pictures to gather evidence for his claim, even if
employer claimed that there was a no-photography rule.
Sherman v. Donahoe, No. C08–1533RAJ, 2012 WL 503851 (W.D. Wash. Feb. 12, 2012): “The
court finds that the documents Mr. Sherman submitted to the EEOC, although USPS may
have thought of them as ‘confidential,’ were not sensitive documents. Although Mr.
Obritsch and Mr. Bell knew in early September 2006 that he had photocopied the
documents, they did not instruct him not to make more copies. They did not restrict his
access to ‘confidential’ documents. In short, they took no steps to prevent Mr. Sherman
from making further copies of ‘confidential’ documents. Moreover, no witness was able to
convince the court that the documents disclosed sensitive information. Indeed, Ms. Houser
submitted the same documents, without redaction, in connection with USPS's later effort to
deny Mr. Sherman unemployment benefits.”
Alexander v. Ohio State University College of Social Work, 697 F. Supp. 2d 831 (S.D. Ohio 2010):
Professor's requests for salary information of other state university professors was not
protected activity under Title VII, as required to establish prima facie case of retaliation
based on his demotion from administrative duties, where it was not in opposition a
discriminatory practice.
REMEMBER – Quite apart from whether information-gathering activity is protected
activity, there is the added problem of violating an employer’s data-security policies as a
“legitimate, non-discriminatory reason” for termination. See, e.g., Niswander v. Cincinnati
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Ins. Co., 529 F.3d 714, 728–729 (6th Cir.2008) (employee's dissemination of claim-file
documents irrelevant to Title VII claim and in violation of employer's privacy policy
constituted a non-pretextual reason supporting employee's termination); Vaughn v. Epworth
Villa, 537 F.3d 1147, 1149, 1153–1154 (10th Cir.2008) (employer had a legitimate, nonretaliatory, and non-pretextual reason for adverse employment action where employee
illegally, and in violation of company policy, supplied unredacted medical records to the
EEOC in order to bolster her Title VII discrimination claim). It may also violate other state
and federal laws and create counterclaims against your client. A better solution would be
to have the client inventory where the data can be found and serve a pre-filing preservation
letter.
Not opposition
Brush v. Sears Holding Corp., 466 Fed. App'x 781 (11th Cir.2012): Opposition to company’s
alleged failure to report sexual assault to police not a protected activity under Title VII.
“Although she seeks to predicate her claim for retaliation upon Mrs. Doe's claims of sexual
harassment and rape, Brush was neither the aggrieved nor the accused party in the
underlying allegations. Instead, she was one of the Sears employees tasked with conducting
the internal investigation. As such, her claims relate not to Mrs. Doe's allegations, but
instead to the procedures of the internal investigation conducted by Sears.” [Also “manager
rule.”]
Thompson v. Somervell County, Texas, 431 Fed. App'x 338 (5th Cir. 2011): Plaintiff's request
that supervisor provide a prior sexual harassment report, together with plaintiff’s statement
that she “was going to do whatever it took to make this right,” was not “opposition” for
purposes of Title VII, as plaintiff's stated reason for requesting report was to find alternate
employment.
Yazdian v. ConMed Endoscopic Technologies, Inc., No. 1:12–CV–951, 2014 WL 2931856 (S.D.
Ohio June 30, 2014): Threatening to bring a lawsuit against employer without specifying
basis for claim in age discrimination not protected activity.
Sellers v. Deere & Co., No. C12–2050, 2014 WL 2085300 (N.D. Iowa May 19, 2014): Complaint
that supervisor was being uncivil with older employees, suggesting that he “temper [his]
words a bit,” does not constitute statutorily protected activity.
DeMoss v. Norwalk Bd. of Ed., No. 3:05CV00736 (DJS), 2014 WL 1875105 (D. Conn. May 9,
2014): opposition to “a policy or practice that discriminated against students on the basis of
their race,” i.e., showing a preference to African-American students, not an employment
practice made unlawful by Title VII.
Austin v. Mac-Lean Fogg Co., No. 2:12–cv–04057–AKK, 2014 WL 769451 (N.D. Ala. Feb. 25,
2014): Rebuffing harasser is not by itself opposition to policies that violate Title VII.
DeMasters v. Carilion Clinic, No. 7:12–cv–580, 2013 WL 5274505 at *8 (W.D.Va. Sept. 17,
2013): Providing counseling to harassment victim through Employee Assistance Program
(EAP) was not opposition to practices prohibited by Title VII.
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Participation
Kelley v. City of Albuquerque, 542 F.3d 802 (10th Cir. 2008): By representing city in EEOC
mediation, assistant city attorney qualified as a protected participant under the
"participation clause" of Title VII.
Carpenter v. Mississippi Valley State Univ., 807 F. Supp. 2d 570 (N.D. Miss. 2011): Plaintiff
who asserted his willingness to testify and to “tell the truth” on two separate occasions in
direct response to questions from his supervisors about co-worker’s Title VII suit fell under
participation clause.
Not participation
Benes v. A.B. Data, Ltd., 724 F.3d 752 (7th Cir. 2013): Engaging in outburst during EEOC
sponsored mediation – breaking into employer’s room and yelling “you can take your
proposal and shove it up your ass and fire me and I’ll see you in court” – was not protected
activity under Title VII.
Townsend v. Benjamin Enterprises, Inc., 679 F.3d 41 (2d Cir. 2012): Employee who was
witness in internal investigation of harassment not associated with a formal EEOC charge
not covered by participation clause. (Nonetheless, participation in an internal investigation
prompted by the filing of an EEOC charge may fall into “participation. Clover v. Total System
Services, Inc., 176 F.3d 1346, 1353 (11th Cir.1999) (“[b]ecause the information the employer
gathers as part of its investigation in response to the notice of charge of discrimination will
be utilized by the EEOC, it follows that an employee who participates in the employer's
process of gathering such information is participating, in some manner, in the EEOC's
investigation”).)
Malouf v. Detroit Medical Center, No. 10–cv–14763, 2013 WL 308724 (E.D. Mich. Jan. 25, 2013):
Email to EEOC relaying complaints regarding alleged sex harassment, stating that “Ms.
Farao is clearly attempting to get me fired or upset me enough to get me to quite because I
refused to have sex with her anymore,” not “participation.”
Risco v. McHugh, 868 F. Supp. 2d 75 (S.D. N.Y. 2012): Sending of email to Equal
Employment Opportunity (EEO) representative about her supervisor's alleged remark that
her inability to perform task was "probably mental," and stated her desire to meet with
supervisor and representative to discuss remark, not participation (did not clearly invoke
discrimination).
Motoyama v. Hawaii, Dept. of Transp., 864 F. Supp. 2d 965 (D. Haw. 2012): Filing an ADA
charge with EEOC not “participation” in Title VII related proceeding.
II. Who Has “Standing””? (Thompson v. North American Stainless, LP)
Yes
Sterner v. County of Berks, Pa., No. 13–1568, 2014 WL 1281241 (E.D. Pa. Mar. 28, 2014):
Friendship with employee who filed EEOC charge sufficient.
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Milton v. Milligan, No. 4:12cv384–RH/CAS, 2013 WL 828591 (N.D. Fla. Mar. 5, 2013): Refusal
to lease property to person who supported employee’s race discrimination suit.
Lard v. Ala. Alcoholic Beverage Control Bd., No. 2:12–cv–452–WHA, 2012 WL 5966617 (M.D.
Ala. Nov. 28, 2012): Dating relationship sufficiently close.
EEOC v. Wal–Mart Associates, Inc., No. 07–CV–0300 JAP/LFG, 2011 WL 8076831 (D.N.M.
Oct. 26, 2011): Refusal to hire children of employee who made complaint.
Ali v. District of Columbia, 810 F. Supp. 2d 78 (D.D.C. 2011): Close friend sufficiently close.
Harrington v. Career Training Inst. Orlando, Inc., No. 8:11–cv–1817–T–33MAP, 2011 WL
4389870 (M.D. Fla. Sept. 21, 2011): Dating relationship was sufficiently close.
Whittaker v. St. Lucie County School Bd., No. 10–14172–CIV, 2011 WL 3424564 (S.D. Fla.
Aug. 5, 2011): Advocacy on behalf of disabled students covered under ADA.
McGhee v. Healthcare Services Group, Inc., No. 5:10cv279/RS–EMT, 2011 WL 818662 (N.D. Fla.
Mar. 2, 2011): Plaintiff employed by a subcontractor of the company that employed his wife
stated claim where (1) plaintiff's wife filed a charge of discrimination against her employer,
and (2) the subcontractor terminated the plaintiff at the request of his wife's employer.
No
Underwood v. Department of Financial Services State of Florida, 518 Fed. Appx. 637, 118 Fair
Empl.Prac.Cas. (BNA) 55 (11th Cir. Apr. 25, 2013): No standing for employee to file
retaliation claim against DFS for firing him because his wife had filed discrimination charge
against Dep’t of Health, a different employer.
Moyer v. Jos. A. Bank Clothiers, Inc., No. 3:11–CV–3076–L, 2014 WL 1661211 (N.D. Tex. Apr.
25, 2014): “Moyer states that she and Cortez were friends for less than a year (March 2009
to February 2010).5 Pl.'s Resp. 2. Plaintiff and Cortez were coworkers and, at one point,
Plaintiff was Cortez's supervisor. The court determines that there is not enough evidence to
prove or raise a genuine dispute of material fact that Cortez and Plaintiff had a strong
enough relationship to where a reasonable person in Plaintiff's position would be
dissuaded from pursuing a discrimination claim if Cortez were threatened.”
Johnson-Richardson v. Tangipahoa Parish School Bd., No. 12–0140, 2014 WL 994660 (E.D. La.
Mar. 14, 2014): Alleged failure to hire wife because husband was engaged in school
desegregation case.
Blount v. Morgan Stanley Smith Barney LLC, 11–cv–02227 CRB, 2013 WL 5663480 (N.D. Cal.
Oct. 17, 2013): Decision not to hire acquaintances whom employee wanted to partner with
(though outcome might have been different if plaintiff alleged that he was hurt financially).
Taylor v. Republic Services, Inc., No. 12–cv–00523–GBL–IDD, 2013 WL 487042 (E.D. Va. Feb.
06, 2013): Refusing to do business with separate company where husband was CEO
(“canceling business deals with her husband's company and, ultimately, driving him out of
the company”), after wife-employee opposed discrimination.
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Jackson v. Deen, 959 F. Supp. 2d 1346 (S.D. Ga. 2013): Failure to prevent and correct racial
harassment against African-Americans did not create claim for white employee, who
claimed that hostile atmosphere interfered with harmonious relations with co-workers.
Williams v. Daiichi Sankyo, Inc., 947 F. Supp. 2d 1234 (N.D. Ala. 2013): Co-workers “saw each
other only very rarely in a social setting” insufficiently close.
Cochran v. Five Points Temporaries, LLC, 907 F. Supp. 2d 1260 (N.D. Ala. 2012). No standing
for white employee who alleged that her employer honored customers' discriminatory
requests for temporary employees based on racial biases; plaintiff did not allege that her
employer took discriminatory action against African–American co-workers with the intent
to affect the plaintiff.
REMEMBER- ADA has separate associational protection that prohibits “excluding or
otherwise denying equal jobs or benefits to a qualified individual because of the known
disability of an individual with whom the qualified individual is known to have a
relationship or association.” 42 U.S.C. § 12112(b)(4).
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