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Topic: "Retaliation" | Main

SCOTUS: Employee has claim for third-party retaliation
January 24, 2011 by Ross Runkel at LawMemo

Eric Thompson claimed he was fired because his fiancée, Miriam Regalado, filed an EEOC charge. The US Supreme Court unanimously held that if Thompson's alleged facts are true, then firing him was unlawful retaliation under Title VII.

Thompson v. North American Stainless (US Supreme Ct 01/24/2011)

Applying Burlington Northern v. White, 548 US 53 (2006), the Court said, "We think it obvious that a reasonable worker might be dissuaded from engaging in protected activity if she knew that her fiancé would be fired."

Title VII grants Thompson a cause of action because he is a "person claiming to be aggrieved ... by an alleged employment practice." He was within the "zone of interests" sought to be protected by the statute.

My view:

This case raises two separate points.

  1. First, is whether firing Thompson was unlawful retaliation. The Court says "we have little difficulty" on that point. This is because the test is whether the employer's action “well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” Well, of course the firing of Thompson would dissuade Regalado. They were engaged to be married.

    What about other relationships? What about an employee’s girlfriend, close friend, or trusted co-worker? The Supreme Court is not going to answer that question for now. Employers will complain that they have to guess. And the lower courts will have to sort this out.

  2. Second, is whether Thompson has a cause of action. The statute says "a civil action may be brought . . . by the person claiming to be aggrieved." That sounds simple enough.

    The Court rejected two extreme positions.

    • One position was suggested by some older cases that suggested that "aggrieved" was coextensive with the outer boundaries of Article III (constitutional) standing. The Court balked at that, saying, "If any person injured in the Article III sense by a Title VII violation could sue, absurd consequences would follow."
    • The other position was that "person aggrieved" refers only to the employee who engaged in the protected activity. The Court thought that was "artificially narrow."

    Ultimately, the Court relied on some Administrative Procedures Act cases under which a plaintiff may not sue unless he "falls within the 'zone of interests' sought to be protected by the statutory provision whose violation forms the legal basis for his complaint." Applying this concept, the Court said:

    Thompson is not an accidental victim of the retaliation - collateral damage, so to speak, of the employer’s unlawful act. To the contrary, injuring him was the employer’s intended means of harming Regalado. Hurting him was the unlawful act by which the employer punished her. In those circumstances, we think Thompson well within the zone of interests sought to be protected by Title VII. He is a person aggrieved with standing to sue.




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SCOTUS: Is an oral complaint protected conduct under FLSA's anti-retaliation provision?
October 12, 2010 by Ross Runkel at LawMemo

The US Supreme Court hears oral argument on October 13 in Kasten v. Saint-Gobain Performance Plastics. [Details, briefs]

Kasten sued the employer, asserting a retaliation claim under the Fair Labor Standards Act (FLSA). The trial court granted summary judgment in favor of the employer. The 7th Circuit affirmed and denied rehearing en banc. The US Supreme Court granted certiorari to review the 7th Circuit judgment, and hears oral arguments on October 13.

Kasten alleged that he was discharged in retaliation for making oral complaints to his superiors that the employer's placement of time clocks violated the FLSA. The FLSA's anti-retaliation provision prohibits an employer from retaliating against an employee because (among other things) the employee "has filed any complaint...." 29 USC Section 215(a)(3).

The 7th Circuit held that "any complaint" includes an employee's internal ("intra-company") complaint. However, the court also held that an employee does not "file" such a complaint in this context when he submits the complaint in purely unwritten form.

Question Presented in the certiorari petition:

Is an oral complaint of a violation of the Fair Labor Standards Act protected conduct under the anti-retaliation provision, 29 U.S.C. § 215(a)(3)?


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Third party retaliation: SCOTUS will decide Thompson v. North American Stainless
June 29, 2010 by Ross Runkel at LawMemo

The US Supreme Court this morning granted certiorari in Thompson v. North American Stainless, to decide whether Title VII creates a cause of action for third-party retaliation for persons who did not themselves engage in protect activity.

[Details, briefs]

In a 10 to 6 decision (that's a lot of judges), the 6th Circuit decided that Title VII does not create a cause of action for third-party retaliation for persons who did not themselves engage in protect activity.

Facts: Eric Thompson claimed he was fired because his fiancée filed an EEOC charge. From February 1997 through March 2003, Thompson, worked as a metallurgical engineer for North American Stainless, LP, the owner and operator of a stainless steel manufacturing facility in Carroll County, Kentucky. Thompson met Miriam Regalado, currently his wife, when she was hired by the employer in 2000, and the couple began dating shortly thereafter. At the time of Thompson’s termination, he and Regalado were engaged to be married, and their relationship was common knowledge at North American Stainless. According to the complaint, Regalado filed a charge with the Equal Employment Opportunity Commission (EEOC) in September 2002, alleging that her supervisors discriminated against her based on her gender. On February 13, 2003, the EEOC notified North American Stainless of Regalado’s charge. Slightly more than three weeks later, on March 7, 2003, North American Stainless terminated Thompson’s employment.

Thompson alleged that he was terminated in retaliation for his then-fiancée’s EEOC charge, while North American Stainless contended that performance-based reasons supported the plaintiff’s termination.

Thompson sued the employer for violation of Title VII alleging retaliatory discharge based on the protected activity of Thompson's fiancée, a co-worker. The trial court granted the employer's motion for summary judgment. The 6th Circuit affirmed. The court described the sole issue as whether section 704(a) of Title VII created a cause of action for third-party retaliation for persons who did not engage in protect activity.

Because Thompson did not allege he himself engaged in any statutorily protected activity (i.e., did not oppose an unlawful employment practice, make a charge, testify, assist, or participate in an investigation), the court found by the plain language of the statute that Thompson was not included in the class of persons for whom Congress created a retaliation cause of action. The 3rd, 5th, and 8th circuits agreed. The court distinguished the recent Supreme Court's decision in Crawford v. Metro Gov't of Nashville and Davidson County, Tenn., 129 SCt 846 (2009), (which abrogated the 6th Circuit's view that the opposition clause required active, consistent behavior), by stating that Crawford involved involuntary testimony while Thompson did not engage in any protected activity.

The three DISSENTS by six judges argued that (1) Crawford, at a minimum, found the meaning of "oppose" ambiguous; (2) the primacy of statutory purpose and a broad approach should apply in interpreting statutes meant to protect employees against employer retaliation for protected activity; and (3) Thompson was a person claiming to be aggrieved (injured or wronged in his rights) under 42 USC Section 2000e-5(b).

Questions presented:

Section 704(a) of Title VII forbids an employer from retaliating against an employee because he or she engaged in certain protected activity. The questions presented are:

(1) Does section 704(a) forbid an employer from retaliating for such activity by inflicting reprisals on a third party, such as a spouse, family member or fiancé, closely associated with the employee who engaged in such protected activity?

(2) If so, may that prohibition be enforced in a civil action brought by the third party victim?




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SG urges no cert grant in third-party retaliation case
May 27, 2010 by Ross Runkel at LawMemo

The US Solicitor General is recommending that the US Supreme Court deny certiorari in Thompson v. North American Stainless, LP. [Details, briefs]

The SG says the lower court's decision was wrong, but there's no split between the circuits.

The Questions Presented in the certiorari petition:

Section 704(a) of Title VII forbids an employer from retaliating against an employee because he or she engaged in certain protected activity. The questions presented are:

(1) Does section 704(a) forbid an employer from retaliating for such activity by inflicting reprisals on a third party, such as a spouse, family member or fiancé, closely associated with the employee who engaged in such protected activity?

(2) If so, may that prohibition be enforced in a civil action brought by the third party victim?

The Solicitor General's arguments: [full brief here]

Certiorari should be denied because the court of appeals’ decision, while erroneous, did not create a division in the circuits or a significant gap in the statute’s coverage

A. There is no division in the circuits

B. The court of appeals’ decision does not leave a substantial gap in Title VII’s coverage

C. The court of appeals erred in concluding that an employee dismissed because of the protected activity of a closely associated employee cannot maintain a Title VII action

1. Third-party retaliation is an unlawful employment practice

2. Petitioner was “aggrieved” by the unlawful employment practice he challenged and thus had standing and a cause of action



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Iqbal applies to OSHA whistleblower cases
May 19, 2010 by Ross Runkel at LawMemo

Department of Labor's Administrative Review Board has ruled (2-1) that Ashcroft v. Iqbal's pleading standards apply to whistleblower claims brought under a variety of statutes such as the Clean Air Act. 

Evans v. US Environmental Protection Agency.

[Decision]



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OSHA: Absence on doctor's order was protected activity
May 12, 2010 by Ross Runkel at LawMemo

A Port Authority Trans-Hudson Corp employee, under a doctor's order, was absent from work while recovering from a work related injury. The employer suspended him for absenteeism.

The employee filed a whistleblower complaint with OSHA, and OSHA concluded that following a doctor's order is a protected safety-related act.

OSHA has ordered backpay and expungement of records.

[Press release]



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SCOTUS to decide whether oral complaint is protected conduct under FLSA ant-retaliation provision
March 22, 2010 by Ross Runkel at LawMemo

Kasten v. Saint-Gobain Performance Plastics Corp (certiorari granted 03/22/2010)
[Details, briefs]

Kasten sued the employer, asserting a retaliation claim under the Fair Labor Standards Act (FLSA). The trial court granted summary judgment in favor of the employer. The 7th Circuit affirmed.

Kasten alleged that he was discharged in retaliation for making verbal complaints to his superiors that the employer's placement of time clocks violated the Fair Labor Standards Act (FLSA). The FLSA's anti-retaliation provision prohibits an employer from retaliating against an employee because the employee "has filed any complaint...." 29 USC Section 215(a)(3).

The 7th Circuit held that "any complaint" includes an employee's internal ("intra-company") complaint. However, the court also held that an employee does not "file" such a complaint in this context when he submits the complaint in purely unwritten form. The court reasoned, "the natural understanding of the phrase 'file any complaint' requires the submission of some writing to an employer, court, or administrative body."

The 7th Circuit denied a rehearing en banc. Three judges DISSENTED from the denial of a rehearing, saying that "The court has adopted a construction of the Fair Labor Standard Act's anti-retaliation provision that is unique among the circuits." "[T]he court has taken a position contrary to the longstanding view of the Department of Labor, departed from the holdings of other circuits, and interpreted the statutory language in a way that I believe is contrary to the understanding of Congress."

The US Supreme Court granted certiorari to review the 7th Circuit judgment. The Court will decide the following question:

"Is an oral complaint of a violation of the Fair Labor Standards Act protected conduct under the anti-retaliation provision, 29 U.S.C. § 215(a)(3)?"


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$1.5 million verdict in Crawford's retaliation case
January 31, 2010 by Ross Runkel at LawMemo

A federal jury returned a verdict of almost $1.5 in a retaliation case that went to the US Supreme Court and back.

Vicky Crawford claimed she was fired for reporting sexual harassment during an internal investigation. The US Supreme Court one year ago held that Title VII's anti-retaliation provision extends to an employee who speaks out about discrimination not on her own initiative, but in answering questions during an employer's internal investigation. 

Crawford v. Metro Govt of Nashville.

[Article]

[US S Ct decision]



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$31,000 settles retaliation suit
January 04, 2010 by Ross Runkel at LawMemo

Concrete Construction Corporation will pay $31,000 and furnish other relief to settle a retaliation suit in which EEOC alleged that the company stopped providing work to one of its employees who filed a charge of discrimination with the EEOC.

[Press release]



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EEOC claims male-on-male harassment
January 04, 2010 by Ross Runkel at LawMemo

EEOC sued Sparks Steak House Dec 31, claiming that male managers and workers created a hostile work environment for male employees, including physical and verbal sexual harassment.

EEOC alleges that an employee who complained about the harassment was retaliated against by getting less desirable assignments and was ultimately terminated.

[Press release]



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EEOC claims retaliation
January 04, 2010 by Ross Runkel at LawMemo

EEOC sued Delta Family Health and Fitness Center for Children, claiming the company discharged four employees who were involved in the filing of several discrimination complaints.

[Press release]



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SCOTUS asks SG's views in retaliation case
December 16, 2009 by Ross Runkel at LawMemo

Thompson v. North American Stainless

Eric Thompson claimed he was fired because his fiancée filed an EEOC charge. In a 10 to 6 decision, the 6th Circuit held that Title VII does not create a cause of action for third-party retaliation for persons who did not themselves engage in protected activity.

A petition for certiorari is pending.

On Monday the US Supreme Court invited the Solicitor General to file a brief expressing the views of the United States. This process typically takes several months; there is no deadline.

[Details, briefs]



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Internal complaints are protected activity under FLSA, but must be in writing
July 01, 2009 by Ross Runkel at LawMemo

The 7th Circuit says the FLSA prohibits retaliation for internal complaints about FLSA violations, but only if those complaints are in writing.

Kevin Kasten sued his former employer, asserting a retaliation claim under the Fair Labor Standards Act (FLSA). The trial court granted summary judgment in favor of the employer. The 7th Circuit affirmed. Kasten v. Saint-Gobain Plastics (7th Cir 06/29/2009).

Kasten alleged that he was discharged in retaliation for making verbal complaints to his superiors that the employer’s placement of time clocks violated the FLSA.

The FLSA’s anti-retaliation provision prohibits an employer from retaliating against an employee because (among other things) the employee “has filed any complaint....” 29 USC Section 215(a)(3).

The court held that “any complaint” includes an employee’s internal (“intra-company”) complaint. The court noted that the majority of the circuits to consider this issue have arrived at the same conclusion.

However, the court also held that an employee does not “file” such a complaint in this context when he submits the complaint in purely unwritten form. The court reasoned, “the natural understanding of the phrase ‘file any complaint’ requires the submission of some writing to an employer, court, or administrative body.” The court observed that there exists a split among the circuits on this issue.



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You can be fired in retaliation for your fiancée's protected activity
June 09, 2009 by Ross Runkel at LawMemo

In a 10 to 6 decision (that's a lot of judges), the 6th Circuit decided that Title VII does not create a cause of action for third-party retaliation for persons who did not themselves engage in protect activity. Thompson v. North American (6th Cir 06/05/2009)

Facts: Eric Thompson claimed he was fired because his fiancée filed an EEOC charge. From February 1997 through March 2003, Thompson, worked as a metallurgical engineer for North American Stainless, LP, the owner and operator of a stainless steel manufacturing facility in Carroll County, Kentucky. Thompson met Miriam Regalado, currently his wife, when she was hired by the employer in 2000, and the couple began dating shortly thereafter. At the time of Thompson’s termination, he and Regalado were engaged to be married, and their relationship was common knowledge at North American Stainless. According to the complaint, Regalado filed a charge with the Equal Employment Opportunity Commission (EEOC) in September 2002, alleging that her supervisors discriminated against her based on her gender. On February 13, 2003, the EEOC notified North American Stainless of Regalado’s charge. Slightly more than three weeks later, on March 7, 2003, North American Stainless terminated Thompson’s employment.

Thompson alleged that he was terminated in retaliation for his then-fiancée’s EEOC charge, while North American Stainless contended that performance-based reasons supported the plaintiff’s termination.

Thompson sued the employer for violation of Title VII alleging retaliatory discharge based on the protected activity of Thompson's fiancée, a co-worker. The trial court granted the employer's motion for summary judgment. The 6th Circuit affirmed. The court described the sole issue as whether section 704(a) of Title VII created a cause of action for third-party retaliation for persons who did not engage in protect activity.

Because Thompson did not allege he himself engaged in any statutorily protected activity (i.e., did not oppose an unlawful employment practice, make a charge, testify, assist, or participate in an investigation), the court found by the plain language of the statute that Thompson was not included in the class of persons for whom Congress created a retaliation cause of action. The 3rd, 5th, and 8th circuits agreed. The court distinguished the recent Supreme Court's decision in Crawford v. Metro Gov't of Nashville and Davidson County, Tenn., 129 SCt 846 (2009), (which abrogated the 6th Circuit's view that the opposition clause required active, consistent behavior), by stating that Crawford involved involuntary testimony while Thompson did not engage in any protected activity.

The three DISSENTS argued that (1) Crawford, at a minimum, found the meaning of "oppose" ambiguous; (2) the primacy of statutory purpose and a broad approach should apply in interpreting statutes meant to protect employees against employer retaliation for protected activity; and (3) Thompson was a person claiming to be aggrieved (injured or wronged in his rights) under 42 USC Section 2000e-5(b).



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Reporting supervisor's viewing of porn at work did not support retaliatory discharge claim
April 24, 2009 by Ross Runkel at LawMemo

The Tennessee Court of Appeals holds that an employee didn’t engage in protected conduct when he reported that his supervisor was viewing pornography in the workplace.

Sanders v. Henry County (Tennessee Ct App 04/21/2009)

Daniel Sanders sued his former employer, alleging that the employer violated a state statute (TCA 50-1-304) when it discharged him in retaliation for reporting illegal activities.

The trial court granted summary judgment in favor of the employer. The Tennessee Court of Appeals affirmed, agreeing with the trial court that Sanders didn’t report “illegal activities” within the meaning of that term under the statute when he reported that his supervisor was using his at-work computer to view pornographic pictures.



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US Supreme Court holds that answering questions during employer's internal investigation is protected against retaliation
January 26, 2009 by Ross Runkel at LawMemo

Crawford v. Metropolitan Govt of Nashville (US Supreme Court 01/26/2008) in a unanimous decision holds that answering questions during employer's internal investigation is protected against Title VII retaliation.

Official Syllabus:

In response to questions from an official of respondent local government (Metro) during an internal investigation into rumors of sexual harassment by the Metro School District employee relations director (Hughes), petitioner Crawford, a 30-year employee, reported that Hughes had sexually harassed her. Metro took no action against Hughes, but soon fired Crawford, alleging embezzlement. She filed suit under Title VII of the Civil Rights Act of 1964, claiming that Metro was retaliating for her report of Hughes's behavior, in violation of 42 U. S. C. §2000e-3(a), which makes it unlawful "for an employer to discriminate against any ... employe[e]" who (1) "has opposed any practice made an unlawful employment practice by this subchapter" (opposition clause), or (2) "has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter" (participation clause). The court granted Metro summary judgment, and the Sixth Circuit affirmed, holding that the opposition clause demanded "active, consistent" opposing activities, whereas Crawford had not initiated any complaint prior to the investigation, and finding that the participation clause did not cover Metro's internal investigation because it was not conducted pursuant to a Title VII charge pending with the Equal Employment Opportunity Commission.

Held: The antiretaliation provision's protection extends to an employee who speaks out about discrimination not on her own initiative, but in answering questions during an employer's internal investigation. Because "oppose" is undefined by statute, it carries its ordinary dictionary meaning of resisting or contending against. Crawford's statement is thus covered by the opposition clause, as an ostensibly disapproving account of Hughes's sexually obnoxious behavior toward her. "Oppose" goes beyond "active, consistent" behavior in ordinary discourse, and may be used to speak of someone who has taken no action at all to advance a position beyond disclosing it. Thus, a person can "oppose" by responding to someone else's questions just as surely as by provoking the discussion. Nothing in the statute requires a freakish rule protecting an employee who reports discrimination on her own initiative but not one who reports the same discrimination in the same words when asked a question. Metro unconvincingly argues for the Sixth Circuit's active, consistent opposition rule, claiming that employers will be less likely to raise questions about possible discrimination if a retaliation charge is easy to raise when things go badly for an employee who responded to enquiries. Employers, however, have a strong inducement to ferret out and put a stop to discriminatory activity in their operations because Burlington Industries, Inc. v. Ellerth, 524 U. S. 742 , and Faragher v. Boca Raton, 524 U. S. 775 , hold "[a]n employer ... subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with ... authority over the employee." The Circuit's rule could undermine the Ellerth-Faragher scheme, along with the statute's " 'primary objective' " of "avoid[ing] harm" to employees, Faragher, supra, at 806, for if an employee reporting discrimination in answer to an employer's questions could be penalized with no remedy, prudent employees would have a good reason to keep quiet about Title VII offenses. Because Crawford's conduct is covered by the opposition clause, this Court does not reach her argument that the Sixth Circuit also misread the participation clause. Metro's other defenses to the retaliation claim were never reached by the District Court, and thus remain open on remand.

211 Fed. Appx. 373, reversed and remanded.

Souter, J., delivered the opinion of the Court, in which Roberts, C. J., and Stevens, Scalia, Kennedy, Ginsburg, and Breyer, JJ., joined. Alito, J., filed an opinion concurring in the judgment, in which Thomas, J., joined.



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No individual liability for retaliation
March 03, 2008 by Ross Runkel at LawMemo

Well, it's official.

An employee does NOT have a cause of action against an individual supervisor for retaliation under California's Fair Employment and Housing Act (FEHA).

Jones v. The Lodge at Torrey Pines (California Supreme Court 03/03/2008) (4-3 vote).

We've known since 1998 that there was no personal liability under FEHA for discrimination.

There was reason to believe that the California court would recognize personal liability for retaliation simply because the retaliation statute has different wording. But not so.

Only the employer itself - not the individual supervisor or manager - is liable for discrimination or retaliation under FEHA.



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Gómez-Pérez v. Potter prediction
February 19, 2008 by Ross Runkel at LawMemo

Paul Secunda has read the US Supreme Court transcript from today's oral argument in Gómez-Pérez v. Potter [Details, briefs] and concludes that the employer will win 5:4. His comments appear at the Workplace Prof Blog and at SCOTUSblog.

The issue is whether federal employees can state a claim for retaliation under the Age Discrimination in Employment Act (ADEA).

Well, I've also read the transcript. Paul is correct that the employer will win, but I don't see the case being decided by a close vote. Anything closer than 7:2 will surprise me.

Why? The ADEA sets up a dual scheme for private employers and for federal employers. Those who work for private employers have an express statutory provision that forbids retaliation. Those who work for a federal employer do not. Under the most elementary rules of statutory interpretation, this means federal employees do not have a claim for retaliation. There's no way four Justices are going to strain the language of the statute to reach the result that Gómez-Pérez wants them to reach.



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Employment retaliation at the Supreme Court
February 18, 2008 by Ross Runkel at LawMemo

This week the US Supreme Court will hear two cases that will decide whether it is illegal for an employer to retaliate against an employee for complaining about discrimination.

It's already clear that retaliation is unlawful under Title VII, and under the private sector provisions of the Age Discrimination in Employment Act (ADEA), and other statutes I won't mention here.

The questions raised this week in two cases are

  • Gómez-Pérez v. Potter (oral argument February 19) [details, briefs]

    Whether, for a federal employee, the ADEA prohibits retaliation for filing an EEO complaint.

    Gómez-Pérez sued claiming that her federal employer (the USPS) retaliated against her because she filed an equal employment opportunity complaint with her employer alleging discrimination on the basis of age. The 1st Circuit held that the ADEA does not provide a cause of action for retaliation by federal employers. Applying ADEA Section 15 (29 USC Section 633a), the 1st Circuit reasoned that the statutory prohibition against "discrimination" does not include a prohibition against retaliation. In contrast, the parallel provision (Section 623(d)) governing private employers specifically prohibits retaliation. The US Supreme Court granted certiorari to review the 1st Circuit's judgment.

  • CBOCS West, Inc. v. Humphries (oral argument Febrary 20) [details, briefs]

    Whether 42 USC section 1981 provides a cause of action for retaliation.

    Humphries sued under 42 USC Section 1981 claiming that his employer discharged him in retaliation for complaining to managers about (a) disciplinary actions taken against him allegedly because of his race, and (b) the discharge of another employee allegedly because of that employee's race. Section 1981 prohibits race discrimination in "the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship." There is no express mention of retaliation. The 7th Circuit held (2-1) that Section 1981 provides a cause of action for retaliation. The US Supreme Court granted certiorari to review the 7th Circuit's judgment.

A third retaliation case is on the docket, but it looks like the oral argument will be put off until October. Crawford v. Metropolitan Government of Nashville and Davidson County, Tennessee [details, briefs] - Crawford claimed she was discharged because she cooperated in her employer's investigation of sexual harassment complaints against another employee. No EEOC charge had been filed prior to the investigation. Title VII Section 704(a) protects an employee from retaliation because the employee "has opposed" an unlawful employment practice or "participated in any manner in an investigation ... under this chapter." The 6th Circuit held that Crawford was not protected by either the "opposition" clause or the "participation" clause. The US Supreme Court granted certiorari to review the 6th Circuit's judgment.

Other comments on these cases:

Workplace Prof Blog: Big Week at Supreme Court for Employment Retaliation Cases

ACS Blog: Three Retaliation Claims Cases Reach the Supreme Court: Video Excerpts (with videos)




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Whistleblower was offered $5,000, recovered $3,000,000
January 26, 2008 by Ross Runkel at LawMemo

According to the lawyer for Nancy Olipares, the employer's lawyer offered no more than $5,000 to settle her whistleblower claim. Olipares' lawyer had offered to settle for $75,000.

A jury said it was worth more than $3,000,000.

Source: Honolulu jury awards $3M to city ex-official, in The Honolulu Advertiser.

I heard about this from Michael Fox, of course. He has a thing for million dollar verdicts. MDV in the Aloha State from Jottings By An Employer's Lawyer.



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Sarbanes-Oxley: An explanation from the 5th Circuit
January 25, 2008 by Ross Runkel at LawMemo

Allen v. Administrative Review Board (5th Cir 01/22/2008) is a must-read case for anyone involved with Sarbanes-Oxley whistleblower cases.

Allen filed a complaint with the Department of Labor against the employer, asserting a whistleblower claim under the Sarbanes-Oxley Act. An administrative law judge dismissed the complaint. The Administrative Review Board (ARB) affirmed that decision, which became the final order of the Secretary of Labor. The 5th Circuit affirmed.

The Act prohibits a publicly traded company from retaliating against an employee who reports information to a supervisor "regarding any conduct which the employee reasonably believes constitutes a violation" relating to one of six enumerated categories.

The court concluded that "an employee's reasonable belief must be scrutinized under both a subjective and objective standard." The court noted "[t]he 'objective reasonableness' standard applicable to [Sarbanes-Oxley Act] whistleblower claims is similar to the 'objective reasonableness' standard applicable to Title VII retaliation claims." The court also noted, however, "[w]e have previously declined to address whether the 'reasonable belief' element of a Title VII retaliation claim includes both a subjective and objective component."

The court determined ultimately that Allen did not act based on a reasonable belief and hence did not engage in protected activity under the Act.

For two good comments on this case, see:




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Supreme Court will decide 42 USC Section 1981 retaliation case
September 25, 2007 by Ross Runkel at LawMemo

CBOCS West, Inc. v. Humphries (certiorari granted 09/25/2007)
Details: http://www.lawmemo.com/supreme/CBOCS/

Humphries sued under 42 USC Section 1981 claiming that his employer discharged him in retaliation for complaining to managers about (a) disciplinary actions taken against him allegedly because of his race, and (b) the discharge of another employee allegedly because of that employee's race.

The 7th Circuit held (2-1) that 42 USC Section 1981 provides a cause of action for retaliation.

The US Supreme Court granted certiorari to review the 7th Circuit's judgment.



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Supreme Court will decide federal employer ADEA retaliation case
September 25, 2007 by Ross Runkel at LawMemo

Gómez-Pérez v. Potter (certiorari granted 09/25/2007)
Details: http://www.lawmemo.com/supreme/Gomez-Perez/

Gómez-Pérez sued claiming that her federal employer (the USPS) retaliated against her because she filed an equal employment opportunity complaint with her employer alleging discrimination on the basis of age.

The 1st Circuit held that the Age Discrimination in Employment Act (ADEA) does not provide a cause of action for retaliation by federal employees.

Applying ADEA Section 15 (29 USC Section 633a), the 1st Circuit reasoned that the statutory prohibition against "discrimination" does not include a prohibition against retaliation.

The US Supreme Court granted certiorari to review the 61st Circuit's judgment.



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$984,970 verdict for National Guard member
June 20, 2007 by Ross Runkel at LawMemo

A federal jury in Portland, Oregon awarded almost a million dollars to a National Guard member who lost his job at Target Corp. [Portland Oregonian report.]

James Patton came back from two weeks of active military duty in June 2003. He had been demoted. He told co-workers and also sought help from the National Guard. On July 14, Target fired Patton, telling him that he sent an e-mail to co-workers that was unprofessional and disruptive.

Patton sued claiming a violation of the Uniformed Services Employment and Reemployment Rights Act (USERRA) and wrongful discharge under state law.

The newspaper says: "Jurors agreed with Target officials who said the demotion of Patton had nothing to do with his military service. But they decided that company officials retaliated against him for asking the National Guard to intervene."

The jury awarded $84,970 in back pay plus $900,000 in punitive damages. Under Oregon law 60 percent of the punitive damages goes into a state fund for crime victim assistance, so Patton's share is $360,000.




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Multiple medical leave claims
May 11, 2007 by Ross Runkel at LawMemo

Michael Faust filed multiple claims against his former employer, all arising out of his back pain, and a note from his chiropractor:

  • discharge in violation of his right to medical leave under the California Family Rights Act (CFRA) (a part of the California Fair Employment and Housing Act (FEHA))
  • retaliation
  • wrongful discharge
  • disability discrimination

The trial court granted summary judgment for the employer,but the California Court of Appeal reversed as to most of Faust's claims. Faust v. California Portland Cement (California Ct App 05/10/2007)

Faust was experiencing severe back pain. His treating chiropractor provided a note recommending treatment and stating that he was "unable to perform regular job duties" for a month. Faust gave the note to his employer. In an exchange of voicemails the employer requested to speak to him about the chiropractor's report. Faust stated that the employer could speak to his wife, chiropractor, or workers compensation attorney, but the employer did not. Faust did not reply to a letter detailing perceived defects in the chiropractor's report. Later the employer discharged Faust, stating that his paperwork was "insufficient to sustain an approved absence."

The California Court of Appeal held:

  1. There was a triable issue on Faust's CFRA claims because the employer did not post notice or give notice to Faust of his CFRA rights, Faust provided notice of his need for CFRA leave, and Faust's chiropractor's report stated the reason for CFRA leave. Although the employer claimed that Faust unreasonably failed to respond to inquiries about his health, another possible inference is that the employer unreasonably refused to communicate with his designated representatives. The court rejected the employer's assertion that Faust's chiropractor was not a qualified health care provider.
  2. There was a triable issue on Faust's claim of retaliation for exercising CFRA rights because he presented a prima facie case, and the employer's assertion that it discharged him for insubordination (taking an unauthorized leave) was undermined by the employer's refusal to communicate with any of Faust's representatives.
  3. There was a triable issue on Faust's claim of wrongful termination in violation of public policy. Because he has viable claims for violation of the CFRA, "it necessarily follows" that he has a triable issue for wrongful termination in violation of public policy.
  4. There was a triable issue on Faust's claim of disability discrimination. There was evidence that the employer was aware of his orthopedic condition, that the employer rejected the chiropractor's recommendation of a leave, and that the employer discharged Faust. The asserted insubordination (taking an unauthorized leave) was undermined by the employer's refusal to communicate with any of Faust's representatives.




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