ALI-ABA Topical Courses Fired Fiancés and Workplace Retaliation in Light of Thompson v. North American March 9, 2011 Telephone Seminar/Audio Webcast

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1 183 ALI-ABA Topical Courses Fired Fiancés and Workplace Retaliation in Light of Thompson v. North American March 9, 2011 Telephone Seminar/Audio Webcast Developments in Retaliation Law in the U.S. Courts of Appeals By Paul W. Mollica Outten & Golden LLP Chicago, Illinois

2 184 DEVELOPMENTS IN RETALIATION LAW IN THE U.S. COURTS OF APPEALS Paul W. Mollica 2011 Of Counsel Outten & Golden, LLP 203 North LaSalle Street Chicago, Illinois (312) Caption and Panel Claim on Appeal Disposition Below Outcome on Appeal Grounds Calhoun v. Johnson, No (D.C. Cir. Jan. 21, 2011) Ginsburg, Rogers. Payne v. Salazar, 619 F.3d 56, 110 FEP 264 (D.C. Cir. 2010) Ginsburg, Henderson Mogenhan v. Napolitano, 613 F.3d 1162, 23 A.D. Cases 705 (D.C. Cir. 2010) Henderson, Edwards promotion, first position (race), first position hiring and, second position (race) Title VII 1. Rehabilitation Act 2. Rehabilitation Act reasonable accommodation Dismissal for failure to state a claim, Fed. R. Civ. P. 12(b)(6) 3. Reversed 1. Where one manager had authority to hire, but was then ordered to hire Asian over African-American, employee, manager s testimony that the plaintiff was a superior candidate by a wide margin created a genuine issue of material fact about discrimination. On three of the four criteria in job vacancy notice, plaintiff out-pointed successful candidate in three out of four categories and successful candidate lacked ability to effectively provide guidance to inter-agency committees. 2. Seven-year period between complaint and failure to hire too remote to imply causal link. 3. Where employee had score only marginally higher than successful applicant, it did not create genuine issue of material fact about comparative qualifications. Federal employee with multiple Title VII claims under 42 U.S.C. 2000e-16 may accept the results of a winning claim at administrative level, while also proceeding to federal court with the losing ones. EEOC administrative judge had found that agency had discriminated against plaintiff on account of her religion, but did not retaliate. Applying plain-meaning reading to the relevant Title VII section, federal employees aggrieved by the final disposition of [a] complaint... may file a civil action. 42 U.S.C. 2000e-16(c). Employee who does not win all of the claims raised in EEO complaint is aggrieved by that disposition. But employee is no sense aggrieved by the claim won before the agency, and there is nothing in the text of section 2000e-16(c) that requires employee to include that claim in a case filed in court. Moreover, section 2000e-16(c) authorizes the employee to file in federal court after final action taken by a department [or] agency. Nothing in the statutory language renders such final agency action nonfinal merely because the employee files a civil action. Panel affirms dismissal of second claim on the ground that employee failed to administratively exhaust it, and claim was not like or reasonable related to her other claim. 1.Genuine issue of material fact whether posting employee s EEO complaint on the Secret Service intranet, where fellow employees could and did access it, and increasing her caseload to five to six times that of other employees (indicating that he was doing so to keep [her] too busy to file complaints ) were materially adverse. 2. No evidence that requested accommodations for migraines (ventilation, move to air conditioned office, ability to take breaks outside or go on worker s compensation) were unreasonably delayed.

3 185 Porter v. Shah, 606 F.3d 809, 109 FEP 653 (D.C. Cir. 2010) HENDERSON, Rogers, Garland promotion (race) performance evaluation (race) Reversed in part 3. Reversed in part 1. Adverse decision against plaintiff in prior show-cause contempt action on the same claims was res judicata. Plaintiff had opportunity for full and fair hearing by submitting documentary evidence, and could have appealed adverse outcome but did not. That burden of proof was heavier than ordinary civil litigation and damages were not available is not determinative of preclusion. 2. On some claims, employee did not demonstrate stark superiority to successful candidates, and there was no evidence indicative of pretext or discrimination, where overhaul of organization applied to all applicants equally. But summary was improper on transfer where plaintiff s educational credentials (with and MS in business) were clearly superior to the successful candidate (who was a high school graduate) 3. As to one 2003 interim assessment, which was delivered orally and not placed in the employee s file, there is no proof of an adverse action. For the 2004 review, rating of Unacceptable Performance that was in writing, placed in file, combined with a performance improvement plan, and having potential consequences for future employment in agency (i.e., exposed to removal, reduction in grade, or reassignment) did constitute adverse action. Moses v. Howard University Hosp., 606 F.3d 789, 109 FEP 641 (D.C. Cir. 2010) EDWARDS, Sentelle, Tatel Pardo-Kronemann v. Donovan, 601 F.3d 599, 108 FEP 1734 (D.C. Cir. 2010) TATEL, Rogers [WILLIAMS, dissenting] Title VII and D.C. law (transfer) (suspension) Employee failed twice to list the claim in a 2003 Chapter 7 bankruptcy and a 2007 Chapter 13 bankruptcy, as required by 11 U.S.C. 521(1) and 541(a)(1). While employee had standing to pursue the appeal (trustee abandoned claim to debtor) and his notice of appeal was timely (the filing period having been tolled by the trustee s participation in the case), his omission of the Title VII claim from the two statements before the bankruptcy court thereby barred the claim by operation of judicial estoppel (i.e., the positions were clearly inconsistent, the first proceeding terminated in the plaintiff's favor, to allow the plaintiff to assert an inconsistent position in the present action would be unfair). 1. Record presents genuine issue of material fact about whether employee s transfer was materially adverse because it deprived him of professional duties (i.e., practicing law) that he occupied at Department of Housing and Urban Development prior to his one-year detail serving temporarily at a different agency (Inter- American Bank). Jury could find that proffered reason for transferring employee - desire to move employee to office where he would be more productive and happy - was pretextual: (1) testimony of manager appeared to suggest actual reason was to move a problem employee; (2) office to which he was transferred (OIA) was known to be running out of funding; and that there would be no legal work; (3) no one consulted with employee about the transfer; (4) tranferee agency was never consulted about reason for transferring plaintiff and it was treated as a done deal. 2. Suspension for failure to appear at work, when plaintiff contends he was seeking leave, was supported by legitimate disciplinary purpose. District court did not abuse discretion by denying Fed. R. Civ. P. 56(f) motion to take additional depositions (granted in part) and for production of s, where latter was new discovery and plaintiff had already had ten months to complete his work. -2-

4 186 Gaujacq v. Electricité de France, S.A.,601 F.3d 565, 108 FEP 1601 (D.C. Cir. 2010) EDWARDS, Henderson, Williams Taylor v. Solis, 571 F.3d 1313, 106 FEP 1121 (D.C. Cir. 2009) GINSBURG, Henderson [ROGERS, dissenting] Jones v. Bernanke, 557 F.3d 670, 105 FEP 1241 (D.C. Cir. 2009) TATEL, Sentelle, Williams Title VII and D.C. law Common law claims (not discussed here) Title VII and ADEA (2000 evaluation) and ADEA ( evaluations) 2. Reversed No genuine issue of material fact that officials elected to transfer plaintiff to France when her contract expired, in part because she effectively refused to cooperate with male executive, under whom she would have been assigned to work had she remained in Washington, D.C. Gaujacq's contract expired and she had no right to remain in Washington, D.C. Company also did not retaliate against plaintiff when they terminated her after she refused to work in France. Manager's statement that "[y]our career is dead in EDF if you file the claim" was brief, fleeting, and unadorned verbal statement as an act or threat of. Five of the six alleged reprisals were not materially adverse (criticized for negative behaviors, slowing processing of employee s caseload, not recommended for job that in the end was never authorized, lowered evaluation). No evidence that filing complaints caused he to be listed as AWOL and cost her back pay (later reinstated), where employee acknowledged error in checking form for sick leave, and in any even there was 2 and ½ month gap between filing complaints and alleged retaliatory action. 1. Employee s argument on FRCP56(f) waived. One-month gap between request for hearing on discrimination and 2000 evaluation. Employee presented sufficient evidence to reasonably support an inference that decision-makers knew about protected act because the agency at large knew about it. Each protected act raises its own claim, so fact that employee took earlier action filing EEO complaint does not diminish inference of temporal proximity to later act. Employee also presented GIMF on pretext. Review refers to projects that he was never assigned to or was removed from. 2. District court erred in analyzing prima facie case after employer presented, non-discriminatory reason; case remanded for analysis. Ahern v. Shinseki, 629 F.39 49, 110 FEP 1785 (1st Cir. 2010) SELYA, Lynch, Thompson hiring (sex) constructive discharge (sex) Women complained that men were favored in hiring, but could not make out prima facie case because they themselves did not apply for any of the positions that were filled. 2. Plaintiffs complained to supervisor about alleged sex discrimination. Plaintiffs presented no genuine issue of material fact about adverse action; proposal to abolish four-day workweek, not carried out, was not adverse. Temporary delays in training and two-week reassignments to other duties not materially adverse. Absence from call list for one month explained by neutral fact that employees had been absent from work the month before and missed the opportunity to sign up, and also temporary so not materially adverse. Supposed loss of titles not documented in record. Moreover, most of the events lacked a temporal connection to the protected activity; several months had intervened. 3. Arguments below were waived when plaintiffs pursued a new theory on appeal. In any event, even if the supervisor proved difficult, no evidence that it was based on gender. Record fails to establish that behavior was so bad that resignation was the only reasonable alternative. -3-

5 187 Vera v. McHugh, 622 F.3d 17, 110 FEP 705 (1st Cir. 2010) LIPEZ, Torruella [SELYA, dubitante] supervisor harassment (sex) coworker harassment (sex) Court erred holding that events were not severe or pervasive. Jury could find that for three months, until plaintiff removed herself to a different office, supervisor shared her workspace for multiple hours every day, stared at her in a sexual way, came so close to her that she could feel his breath, pulled his chair next to her so that their legs touched, laughed at her discomfort, blocked her escape from the cramped office with a closed door, and on one occasion called her Babe. While they were sharing an office, and again after plaintiff returned from an extended leave, supervisor would inappropriately close to her and smirking at her when she backed away. Conduct that forces an employee to abandon his or her own office during the workday could reasonably be seen as interfering with that employee's work performance. Supervisor s behavior caused plaintiff psychological trauma that persisted even after she had left the hostile environment. 2. Plaintiff failed to exhaust her administrative remedies. No grounds for estoppel; while EEO office did not fully comply with charge intake regulations, plaintiff was informed of the specific procedural steps involved in continuing to pursue her claim. Also, plaintiff waited an unreasonable amount of time (three years) after discovering irregularity to pursue claim. 3. Actions plaintiff identifies as retaliatory occurred a year or more after she filed her informal complaint against co-worker. As for supervisor, complaints about absenteeism, AWOL status and eventual termination pre-existed plaintiff s complaints of harassment. Collazo v. Bristol-Myers Squibb Mfg., Inc., 617 F.3d 39, 109 FEP 1601 (1st Cir. 2010) LIPEZ, Torruella, Selya Title VII and P.R. law P.R. law claim (not discussed here) Reversed 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 complained-of conduct was protected opposition activity under Title VII's anti- 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. Combination of the short turn-around time between the opposition activity and termination - mere days - plus evidence of the falsity of the performance and reduction-in-force rationale was sufficient to present a triable issue on the merits. Plaintiff complained that the district court took unconscionably long (August 2006 to March 2009) to resolve the summary motion. Writes the panel, [i]n light of our conclusion that the district court erred in granting summary for Bristol-Myers on Collazo's Title VII and related state law claims, we need not address this alternative claim of error. However, we remind the court upon remand of its duty to cause the case to be in every way expedited. 42 U.S.C. 2000e-5(f)(5). -4-