This page contains entries under the topic: "Retaliation" | Main

$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]

$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]

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]

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]

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]

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.

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).

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.

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.

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.

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.

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)

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.

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:

• 5th Cir. Upholds SOX Decision of No Protected Activity from Michael Fox's Jottings By An Employer's Lawyer
• Fifth Circuit Decision Clarifies the Scope of Protected Conduct Under SOX from The Employment Law Group's Whistleblower Law Blog

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.

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.

$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.

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.

Release of EEOC claims wasn't retaliation
October 26, 2006 by Ross Runkel at LawMemo

Agreements not to file EEOC charges may be unenforceable, but is offering such an agreement retaliation?

The 6th Circuit thought not in EEOC v. SunDance Rehabilitation (6th Cir 10/24/2006).

The Equal Employment Opportunity Commission (EEOC) sued the employer, asserting retaliation claims under the Age Discrimination in Employment Act (ADEA), the Americans with Disabilities Act (ADA), the Equal Pay Act (EPA), and Title VII.

The trial court granted summary judgment in favor of the EEOC, concluding that the employer's separation agreement was "facially retaliatory" under those acts (at least to the extent that it conditioned severance pay on a promise not to file an EEOC charge).

The 6th Circuit reversed.

Courts have upheld employees' waivers of claims under the ADEA, ADA, EPA, and Title VII. Whether the waiver of the right to file an EEOC charge is enforceable, however, is another matter. Purported prohibitions on filing EEOC charges have been held to be void and unenforceable as against public policy (the seminal case is EEOC v. Cosmair, Inc., L'Oreal Hair Care Div., 821 F.2d 1085 (5th Cir 1987)). The 6th Circuit itself has agreed with that approach (EEOC v. Frank's Nursery & Crafts, Inc., 177 F.3d 448 (6th Cir 1999)).

However, the court was not persuaded by the argument that the mere offer of a separation agreement containing such a prohibition amounted to actionable retaliation under the ADEA, ADA, EPA, or Title VII.

The court noted that its rejection of that argument was contrary to the EEOC's Enforcement Guidance on Non-Waivable Employee Rights, EEOC Notice 915.002.

No tax on emotional distress and reputation loss damages
August 22, 2006 by Ross Runkel at LawMemo

A blockbuster case. It's unconstitutional for the IRS to tax an employee's award for "emotional distress" or "mental anguish" or "injury to professional reputation."

Murphy v. Internal Revenue Service (DC Cir 08/22/2006).

Marrita Murphy recovered damages from her employer on her claim that the employer violated various whistleblower statutes and retaliated against her. The damages were awarded in a Department of Labor administrative action.

The administrative law judge specified that part of the award was for "emotional distress or mental anguish," and part was for "injury to professional reputation."

Murphy paid taxes on the award, and then sued IRS seeking a tax refund. The trial court granted summary judgment for the government; the DC Circuit reversed.

Murphy had two theories: (1) the award was excluded from taxation by virtue of the language of the Internal Revenue Code, and (2) taxing the award would violate the 16th amendment which gives Congress the power to tax "income."

• The DC Circuit agreed with the IRS that the Tax Code did not exclude the award from income.

  The compensation was not "received on account of personal physical injuries," [Section 104(a)(2)] and therefore Section 104 does not permit Murphy to exclude her award from income.

• The DC Circuit held that Section 104, as applied to Murphy, is unconstitutional.

  This is for two reasons:

  1. Under the 16th amendment, Congress has the power to tax only "gain[s]" or "accessions to wealth." Commissioner v. Glenshaw Glass, 348 US 426 (1955). "[T]he damages were awarded to make Murphy emotionally and reputationally 'whole' and not to compensate her for lost wages or taxable earnings of any kind. The emotional well-being and good reputation she enjoyed before they were diminished by her former employer were not taxable as income. Under this analysis, therefore, the compensation she received in lieu of what she lost cannot be considered income ...."
  2. The "original understanding" of the framers of the 16th amendment was that they "would not have understood compensation for a personal injury - including a nonphysical injury - to be income."

We're going to hear a lot about this case. For now, check what TaxProf Blog says: D.C. Circuit Holds § 104(a)(2) Unconstitutional Under 16th Amendment; Not All Receipts Constitute "Income" Under Glenshaw Glass.

One racist comment, one report to management, one less employee
August 14, 2006 by Ross Runkel at LawMemo

Jordan v. Alternative Resources (4th Cir 08/14/2006 - after a rehearing) makes me want to talk about one of the difficulties of Title VII retaliation law: What employee conduct is protected from retaliation?

In Jordan, an employee complained to management about one extremely crude racist comment from a co-worker. A month later he got fired. The court said (2-1) that no reasonable employee would believe that the one comment created a hostile work environment, so reporting it wasn't protected by Title VII, and it would be OK for the employer to fire him for that.

I'll give you three examples. Let's assume that an employee sees some horribly crude sexist conduct going on, and reports it to management, and gets fired for doing that. The conduct that the employee complained about is going to fit into one of these three groups:

1. The conduct was a violation of Title VII because it was sufficiently pervasive or severe, and it was because of sex. The employer is not allowed to fire the employee for reporting the conduct.
2. The conduct was not a violation of Title VII, but it was a close call, so a reasonable employee could believe that the conduct violated Title VII even though it didn't. The employer is not allowed to fire the employee for reporting the conduct.
3. The conduct was not a violation of Title VII, and it was not a close call, so no reasonable employee could have believed that the conduct violated Title VII. The employer is allowed to fire the employee for reporting the conduct.

I have three serious problems with this approach.

First. Read the statute (Title VII Section 704). It says, in the part we care about here:

"It shall be an unlawful employment practice for an employer to discriminate against any of his employees ... because he has opposed any practice made an unlawful employment practice by [Title VII]."

If the plain meaning of a statute has any plain meaning, then the only "practice" an employee can complain about and get Title VII protection is conduct that actually violates Title VII (category #1 above).

Category #2 above is the creation of the courts. They added this because they thought it was a good idea. I think it's a good idea too, but usually judges are only allowed to interpret Congress' statute, and not to add in all their good ideas.

Second. It's a pretty fuzzy line between category #2 and category #3. According to the judges, it's easy, because all they have to do is figure out what a reasonable person would think. But how does a male judge know what a reasonable woman would think? And how does a white judge know what a reasonable black employee would think? The Jordan case illustrates the problem; two judges voted category #3 and one judge voted category #2. "Reasonable" judges can't agree on what a "reasonable" employee would believe.

(To make it worse, I think the judges usually analyze it wrong. The real question should be whether any reasonable juror could conclude that a reasonable employee would believe there was a Title VII violation.)

Third. Category #3 creates a trap for the conscientious employee. Jordan is the great example. He sees what looks like the beginning of a racially hostile work environment, and reports it to management as he has been instructed to do. The court says he can be fired for that, because it was category #3.

Retaliation for reporting off-duty off-premises co-worker harassment?
August 06, 2006 by Ross Runkel at LawMemo

Employers beware: Reporting non-actionable harassment can still support a claim for retaliation. That's the message from Meece v. Atlantic Southeast Airlines (ND Georgia 08/02/2006), even though the employee eventually lost. [Court opinion] [Magistrate opinion]

Stephanie Meece was a flight attendant who shared an apartment ("crash pad") with a pilot and other co-workers. Meece claimed the pilot sexually harassed her - at the apartment, at the mall, and at the movies - three or four times a week for three or four months. These incidents did not effect her job performance. After about three months, Meece reported these incidents to her supervisor. The employer discharged Meece six months after she was hired.

Meece lost on her harassment claim, primarily because the harassment occurred off-duty and off-premises.

She also lost her retaliation claim, primarily because she couldn't show the employer's reason for discharge (substandard performance) was pretextual.

The important message from this case is the court's conclusion that Meece had a reasonable and good faith belief that the non-actionable harassment was a Title VII violation.

Lots of cases hold that off-duty off-premises co-worker harassment does not violate Title VII, so you might think her belief was not "reasonable."

The court noted that some cases have found employer liability for off-duty harassment (such as when an airline pays for a flight crew's hotel room). So the court decided that "it was not unreasonable for the Plaintiff to believe the behavior constituted sexual harassment."

If Meece's evidence of pretext had not been so miserably thin, she might have had a shot at a jury. And trust me on this. Juries really do not like employers to retaliate against employees because they reported harassment.

Whistleblower Protection Act triggered by canceling vacancy
July 12, 2006 by Ross Runkel at LawMemo

If an alleged whistleblower applies for a job, and then the job vacancy is cancelled, can the applicant claim foul?

Yes. Ruggieri v. MSPB (Fed Cir 07/11/2006)

Ruggieri appealed from an order of the Merit Systems Protection Board (MSPB) dismissing his Individual Right of Action appeal under the Whistleblower Protection Act (WPA). The Federal Circuit reversed.

Ruggieri was not selected for a federal position because the agency that posted the vacancy announcement decided to cancel the announcement and not hire anybody.

The question for the court:

Whether an agency triggers the Whistleblower Protection Act by 'fail[ing] to take ... a personnel action.' 5 USC Section 2302(b)(8), when the agency declines to hire an applicant pursuant to a vacancy announcement, but instead of hiring a different person cancels the vacancy announcement and hires no one for the position at that time."

The answer: Yes.

A contrary conclusion "would immunize an agency's decision not to hire a whistleblower, so long as the agency was willing simply not to fill the position for which the whistleblower had applied, even if the agency's conduct was plainly motivated by whistleblowing activity."

Burlington Northern v. White - Title VII retaliation - analysis
June 22, 2006 by Ross Runkel at LawMemo

What kind of employer actions can be retaliation under Title VII? Burlington Northern v. White (US Supreme Court 06/22/2006) gives these answers.

Basic rule:

"We conclude that the anti-retaliation provision [Section 704] does not confine the actions and harms it forbids to those that are related to employment or occur at the workplace. We also conclude that the provision covers those (and only those) employer actions that would have been materially adverse to a reasonable employee or job applicant. In the present context that means that the employer's actions must be harmful to the point that they could well dissuade a reasonable worker from making or supporting a charge of discrimination."

• No link to employment is needed.

  Unlike Title VII's basic anti-discrimination section (703), the anti-retaliation section (704) has different language and a different purpose. Section 703 prohibits discrimination with respect to conditions of employment, but Section 704 has "no such limiting words." Section 703 prevents injuries based on who people are (based on sex, race, etc.), while Section 704 is based on what people do (e.g., filing an EEOC charge or complaining to management). Limiting Section 704 retaliation to employer actions that are work-related or employment-related would not achieve Section 704's purpose.

  Examples:

  • Rochon v. Gonzales, 438 F. 3d 1211 (DC Cir 2006). Retaliation against FBI agent took the form of the FBI's refusal, contrary to policy, to investigate a death threat against the agent.
  • Berry v. Stevinson Chevrolet, 74 F. 3d 980 (10th Cir 1996). Employer filed false criminal charges against a former employee.
• Material adverse action. In order to "separate significant from trivial harms," the Court requires the employee to show that the employer's action was "materially adverse." This will exclude "petty slights or minor annoyances."
• Reaction of a reasonable employee. The Court adopted an objective standard, so an individual employee's "unusual subjective feelings" will not be relevant. The focus is on the materiality of the employer's action and "the perspective of a reasonable person in the plaintiff's position."

  Examples:

  • Changed job duties. In the Burlington case, the employer changed the employee's duties, however the duties were still within her job description. The job description did not matter. What mattered was that the new job was dirtier, harder, less prestigious, and perceived by other employees as being worse.
  • Temporary suspension. In the Burlington case, the employee was suspended for 37 days, and then reinstated with back pay. The Court said a reasonable employee would find a month without a paycheck to be a "serious hardship."
  • Schedule change. Might not matter to many employees, but "may matter enormously to a young mother with school age children."
  • Refusal to invite to lunch. Usually trivial, but exclusion from a weekly training lunch might well deter a reasonable employee from complaining.

My view: This Court understands how to read a statute.

Burlington Northern v. White - Title VII retaliation has broad definition
June 22, 2006 by Ross Runkel at LawMemo

The US Supreme Court has adopted a broad definition of retaliatory actions under Title VII, interpreting Section 704 as applying to actions that "could well dissuade a reasonable worker from making or supporting a charge of discrimination."

The Court said:

We conclude that the anti-retaliation provision [Section 704] does not confine the actions and harms it forbids to those that are related to employment or occur at the workplace. We also conclude that the provision covers those (and only those) employer actions that would have been materially adverse to a reasonable employee or job applicant. In the present context that means that the employer’s actions must be harmful to the point that they could well dissuade a reasonable worker from making or supporting a charge of discrimination.

Burlington Northern v. White (US Supreme Court 06/22/2006).

"Adverse employment action" argument in Supreme Court
April 11, 2006 by Ross Runkel at LawMemo

In the most important employment law case of the year, the US Supreme Court hears arguments in Burlington Northern v. White on Monday, April 17. Issue: What's an adverse employment action in a retaliation case?

I've looked at the briefs, and we're going to see a great argument. The issue is of extraordinary importance. Often an employee loses on the merits of a claim for sex discrimination or race discrimination, but can win on a claim that the employer retaliated for filing an EEOC charge or for complaining.

In a regular discrimination suit or a harassment suit brought under Title VII Section 703, it's clear that the employee must prove that the employer took an action that has an effect on terms and conditions of employment - firing, transfer to a job with significantly different responsibilities, significant change in benefits, etc.

Retaliation suits come under Section 704. Is the standard different? We'll see.

History of Burlington Northern v. White: A jury found in White's favor on her claim of retaliation for filing an EEOC charge. The en banc 6th Circuit affirmed the verdict. The issue was whether two actions were adverse employment actions under Title VII Section 704.

• (1) White was working as a fork lift operator, and the employer transferred her to work as a standard track laborer.
• (2) Later, the employer suspended White without pay for 37 days. After she filed a grievance, the employer reinstated her and gave her full back pay.

Lower courts are in disarray, adopting various standards for deciding whether there has bee an adverse employment action. There are main three standards:

• Ultimate employment decision. It has to be a discharge or failure to promote. Can't be lesser items such as lateral transfers, temporary suspensions. Burlington likes this one, and says the Court should adopt the same test it used in Burlington Industries v. Ellerth, 524 US 742 (1998).
• Materially adverse change. The 6th Circuit used this one in the decision below.
• Reasonably likely to deter employees from engaging in protected activity. The EEOC likes this one.
• White is pushing for an "any retaliatory act" test, but probably would settle for the "reasonably likely to deter" test.

I've previously explained why I think the test in Section 704 should be much more employee-friendly than the Section 703 test. In a nutshell: (1) The text of 704 simply forbids discrimination, while 703 forbids discrimination with respect to terms and conditions of employment. (2) Section 704 is designed to protect the system (courts, EEOC, and employees who protest) against employer interference, which is more important than protecting an individual employee from an employer's race or sex discrimination.

No matter which test the Court adopts, the facts have to applied. Burlington makes some interesting arguments:

• White was re-assigned from driving a lift truck to doing track work. That cannot possibly be an adverse employment action because doing track work was part of her job description and was what she was hired to do. My view: The Court should look at what actually took place rather than the formal description of the employee's job.
• White was suspended and then reinstated with back pay, all under the system set up in a collective bargaining agreement. Following a collectively bargained process should not be considered an adverse employment action. My view: A contract with a union should not insulate an employer from Title VII liability.

Here's what the Court's job boils down to:

• Decide whether Section 704 "discrimination" means the same thing as it does in Section 703.
• If it means something less, then what does it mean?
• Figure out a way for lower courts to screen out allegations involving minor inconvenience or bruised egos.

Non-employment action can be retaliation
March 14, 2006 by Ross Runkel at LawMemo

I want to dramatize how different Title VII's retaliation section is from its main section.

Section 703(a)(1) (the main section):

• prohibits discrimination because of an individual's race, color, religion, sex, or national origin.


• says the employer must not "discriminate against any individual with respect to [the individual's] compensation, terms, conditions, or privileges of employment."

Section 704 (the retaliation section):

• prohibits discrimination because an individual has --
  
  • "opposed any practice made an unlawful employment practice by" Title VII
  
  - or -
  
  • "made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under" Title VII.


• says the employer must not "discriminate against" the individual. Period.

The purposes of 703 and 704 are different. Section 704 is designed to protect the process, to protect courts from employer interference, to protect the EEOC from employer interference, and to protect employees who oppose illegality. That is totally different from 703, which is designed to protect employees against job changes because of race, sex, etc.

The kinds of discrimination prohibited are different. Section 703 applies only to discrimination with respect to job-related things. Section 704 prohibits discrimination, period.

Some lawyers say 704 should be read as if it had the extra 703 language in it. Perhaps Congress had a slip of the pen, and really meant to include a dozen or so words. (Some slip!) Perhaps "discrimination" in 704 was simply "shorthand" for discrimination in 703. I don't think so.

It looks to me like Congress knew exactly what it was doing in Section 704. Two things:

• Purpose: Protecting the litigation and enforcement process from employer interference.
• Method: Prohibiting all forms of discrimination against employees who oppose illegal practices or participate in Title VII proceedings.

This means the forms of discrimination forbidden by Section 704 are unhooked from the limitations of Section 703.

• The discrimination need not be a tangible employment action like a discharge or refusal to hire or a demotion. Why? Because the discrimination doesn't have to be "with respect to" terms and conditions of employment.
• The discrimination need not be "severe or pervasive." Why? Because that requirement was designed to screen out 703 cases in which there was little effect on employment conditions.
• The discrimination can involve something totally disconnected from the job. Why? Because 704 reaches all discrimination, and does not have the 703 limitation of "with respect to" terms and conditions of employment.

One case in point. Rochon v. Gonzales (DC Cir 02/28/2006). The court said the employee "was not required to demonstrate his employer's retaliatory act was related to his employment." Rochon was an FBI agent who filed a formal EEO complaint and later claimed his employer discriminated against him because of that (so far, a classic retaliation claim).

The big deal in the Rochon case was the alleged retaliatory act. He claimed that the FBI received death threats against him and his wife from a prison inmate. Standard procedure is for the FBI to investigate and take protective steps. Rochon claims the FBI did not do this.

The DC Circuit correctly held that the employee had a claim even though the employer's retaliatory act was not related to his employment.

The US Supreme Court will have a chance to clarify some of this in Burlington Northern v. White, which is now pending. However, that case does not include an issue on non-employment retaliatory actions.

EEOC goes after sexual harassment
March 11, 2006 by Ross Runkel at LawMemo

EEOC seems serious in its quest to rid the workplace of sexual harassment. Two recent cases yielded a verdict for $1.34 million and a settlement for $90,000.

$1.34 million.

EEOC sued Associated Security Enforcement on behalf of four women, charging sexual harassment and retaliation. For the unpleasant details of the sexual harassment, go read the EEOC press release.

A jury awarded $35,000 each to two women and $25,000 each to the other two to compensate them for the emotional pain and suffering. The jury also awarded a total of $17,000 for back pay for two women.

Punitive damages: The jury also assessed punitive damages of $300,000 each for all four women. Total punitive damages: $1,200,000.

$90,000.

EEOC sued Pand Enterprises (doing business as a McDonald's restaurant franchise) on behalf of a class of teenage male employees claiming sexual harassment by a male supervisor.

The case settled for $90,000 plus a consent decree requiring training and other preventive efforts. EEOC press release.

Whistleblower: Be careful where you blow
February 12, 2006 by Ross Runkel at LawMemo

Is a whistleblower protected from retaliation if she blew the whistle inside the employer's organization, or blew it to the wrong individual or government agency?

As general rule, an employee-whistleblower is more likely to have statutory protection if she

• reports wrongdoing to a government agency rather than merely reports it to someone within the employer's organization.
• reports wrongdoing to the "correct" individual or government agency, that is, the individual or agency that is in a position to correct the wrongdoing.

Recent examples:

1. The risk manager of a bank wrote some critical memos and delivered them to the bank's board of directors, audit committee, and upper management. The bank discharged the manager, and he sued claiming retaliation under the Financial Institutions Reform, Recovery, and Enforcement Act (FIRREA) as amended by the Federal Deposit Insurance Corporation Improvement Act (FDICIA). That statute protects disclosures to "any Federal banking agency or to the Attorney General."

   The 11th Circuit held that this does not protect employees who make only internal reports to their own banks. Even though it was inevitable that the memos would come to the attention of one of the banking agencies mentioned in the statute, that was not enough to provide protection to the employee. Lippert v. Community Bank (11th Cir 02/08/2006).

   (Other statutes do protect employees who engage in internal whistleblowing. It all depends on what the statute says.)

2. An employee of a state-owned facility thought there were some financially improper transactions taking place. He reported these transactions to other government employees. The problem was that the alleged wrongdoing was being done by people who were the superiors to the persons he made the reports to. Therefore, the court held that he was not making a report to somebody who was in a position to correct the alleged wrongdoing. As a result, his activity was not protected by the Maryland Whistleblower Statute. Dept of Natural Resources v. Heller (Maryland Ct App 02/09/2006). (The Maryland court split 4-3 on this issue.)

I discuss whistleblowing in general as part of the "Employment Law 101" series: Whistleblowing #13.

"Adverse employment action" reaches Supreme Court
December 05, 2005 by Ross Runkel at LawMemo

What's an "adverse employment action" in a retaliation case? The US Supreme Court said on December 5 that it will decide that question in Burlington Northern v. White (Docket No 05-529).

Sheila White claimed her employer retaliated against her because she filed an EEOC charge. A jury agreed. The 6th Circuit (en banc - 13 judges) affirmed. The unhappy employer has persuaded the US Supreme Court to take a look.

The issue was whether two actions were adverse employment actions under Title VII.

• White was working as a fork lift operator, and the employer transferred her to a job as a standard track laborer


• Later, the employer suspended White without pay for 37 days. After she filed a grievance, the employer reinstated her and gave her full back pay.

The 6th Circuit explained that in order to succeed in a retaliation case the employee must prove that there was an "adverse employment action." Although some courts have said that Title VII applies only to an employer's "ultimate employment decision" such as hiring, granting leave, discharging, promoting, and compensating, the 6th Circuit joined the majority of circuits in rejecting that test.

The 6th Circuit also rejected the test included in the EEOC Guidelines: "any adverse treatment that is based on a retaliatory motive and is reasonably likely to deter a charging party or others from engaging in protected activity."

The test adopted by the 6th Circuit distinguishes between (a) situations in which there is "a materially adverse change in the terms of her employment" and (b) situations involving a "mere inconvenience or an alteration of job responsibilities" or a "bruised ego."

Under the 6th Circuit's test, the suspension was an adverse employment action because it is "not trivial" and involves more than a "mere inconvenience" or "bruised ego." The job transfer was an adverse employment action even though both jobs were paid the same. The laborer job was more arduous, dirtier, and carried less prestige, and the trial court characterized it as a demotion.

CONCURRENCE: Although the 6th Circuit was unanimous as to the above result, five judges (out of 13) took the position that the court should adopt the standard proposed by the EEOC: "reasonably likely to deter [employees] from engaging in protected activity." This would be more consistent with the statutory language, Congressional intent, and Supreme Court case law.

Decision below: White v. Burlington Northern (6th Cir en banc 04/14/2004)

Section 1983 did not override state's immunity statute
November 24, 2005 by Ross Runkel at LawMemo

Larry Woodward, a public employee, claimed his supervisors retaliated against him for engaging in constitutionally protected activity.

He sued the employer's supervisors seeking damages for violation of 42 USC Section 1983.

The employer cited New York Correction Law section 24 which provided that no civil action could be brought in any state court against employer's employees in their personal capacity for damages for acts done in the scope of employment and discharge of duties.

The trial court granted the employer's motion to dismiss, and the New York Supreme Court, Appellate Division affirmed (3-2). Woodward v. State of New York (New York App Div 11/17/2005)

The issue was whether 42 USC Section 1983 preempted Correction Law section 24.

The court reasoned that since New York did not provide a state forum for similar state law claims, the state was not federally mandated to provide a state forum for 42 USC Section 1983 claims (Martinez v State of California, 444 US 277 (1979)).

The DISSENT argued that Correction Law section 24 presented an obstacle to the enforcement of 42 USC Section 1983 rights because of the complete bar to actions for monetary relief.

Fire that one and get "somebody hot"
August 11, 2005 by Ross Runkel at LawMemo

Elysa Yanowitz claimed she suffered retaliation because she refused a manager's order to fire a female subordinate the manager viewed as not sufficiently sexually attractive or "hot." She claimed a violation of the retaliation provision of the state Fair Employment and Housing Act (FEHA). The trial court granted summary judgment for the employer; the Court of Appeal reversed; the California Supreme Court affirmed the Court of Appeal's judgment. Yanowitz v. L'Oreal USA (California 08/11/2005).

The allegations were: Yanowitz was the employer's regional sales manager. The general manager of her division instructed her to discharge a dark-skinned female because he did not find the woman sufficiently sexually attractive, and said to get "somebody hot" or words to that effect. Yanowitz asked for an adequate justification. Several times the manager asked if the woman had been dismissed and Yanowitz asked for an adequate justification. Yanowitz did not carry out the order, did not complain to her immediate supervisor or to human resources, and did not explicitly tell the manager she believed his order was discriminatory.

• (1) The court held that an employees' refusal to follow an order that the employee reasonably believes to be discriminatory is "protected activity" under the FEHA when the employee objects to the order but does not explicitly say that she believes the order violates the FEHA. Yanowitz believed the order was unlawful sex discrimination because she thought the order represented application of different standards for females than for males. Even though Yanowitz never told anyone she was refusing to obey the order because she thought it would violate the FEHA, the trier of fact could conclude that the manager knew Yanowitz was objecting repeatedly because she believed the order was discriminatory. Two judges DISSENTED on this point, saying that in order to be a whistleblower "one must blow the whistle - not in any technical way, but in some way. Plaintiff did not do so." The dissenters also saw no causal link between protected activity and adverse employment actions because the employer did not know about the protected activity.
• (2) When deciding whether there has been an "adverse employment action" in a retaliation case, there must be an impact on "terms, conditions, or privileges of employment" - interpreted liberally. Further, one must look "collectively" at a series of individual sanctions or punitive measures rather than taking them one-at-a-time. Here Yanowitz has alleged a pattern of systematic retaliation (e.g., negative evaluations, refusal to allow a response to criticism, unwarranted criticism in front of other employees, soliciting negative feedback from Yanowitz's staff).
• (3) An employee may use the continuing violations doctrine to rely upon allegedly retaliatory actions that occurred outside the limitations period when such acts are related to acts that occur within the limitations period. To the extent this policy deviates from the US Supreme Court's analysis of federal law (Natl RR Passenger Corp v. Morgan, 536 US 101 (2002)), the court declined to adopt its reasoning.

My view: This case will make it much easier for employee plaintiffs to prove retaliation for opposing practices that they believe are unlawful. The "opposition" here would be simple insubordination if the employer did not know the reason for Yanowitz's refusal to follow orders, and the evidence that the employer knew was pretty slim (even though the court holds that it was enough to go to the jury).

False Claims Act retaliation claim statute of limitations
June 20, 2005 by Ross Runkel at LawMemo

The US Supreme Court says the statute of limitations for False Claims Act retaliation claims is the most analogous state statute. Graham County Soil v. US ex rel Wilson (US Supreme Court 06/20/2005).

Wilson sued under the federal False Claims Act (FCA) claiming her employer retaliated against her for alerting federal officials to purported fraud and for cooperating with the ensuing investigation. The trial court dismissed the suit as untimely under the state's 3-year statute of limitations; the 4th Circuit reversed, applying the FCA's 6-year limitation period; the US Supreme Court reversed.

The US Supreme Court held: The appropriate statute of limitations in a False Claims Act retaliation case is the most closely analogous state statute, not the 6-year period stated in the FCA.

My view: (1) Typically state statutes of limitations will be shorter than six years. (2) Plaintiffs often join a retaliation claim with a qui tam action in the Government's name (hoping to collect a portion of the ill-gotten gains). The qui tam claim will governed by the federal six-years statute of limitations.

Transfer was not retaliation
March 20, 2005 by Ross Runkel at LawMemo

California is rejecting the EEOC's and the 9th Circuit's definition of an "adverse employment action" in retaliation cases.

Dr. McRae was a surgeon at the California Medical Facility in Vacaville who filed a complaint with the California Department of Fair Employment claiming race discrimination, and later got transferred to the California State Prison in Solano. She sued under California law, claiming retaliation.

Prior California law

Earlier California cases made it clear that in a retaliation claim the plaintiff must show more than some form of adverse treatment, but must show that the employer's retaliatory actions had a detrimental and substantial effect on the plaintiff's employment.

9th Circuit position

In Ray v. Henderson, 217 F.3d 1234 (9th Cir 2000), the 9th Circuit adopted a broad statement of the kind of employer action that can constitute retaliation: "any adverse treatment that is based on a retaliatory motive and is reasonably likely to deter the charging party or others from engaging in protected activity." That was based on the EEOC Compliance Manual.

The outcome for McRae

The California Court of Appeal said she did not suffer "the kind of adverse employment action required for a claim of retaliation." McRae v. Dept of Corrections (California Ct App 03/18/2005).

The court said that a transfer can be an adverse employment action, but only if it "results in substantial and tangible harm." McRae's transfer was not a demotion and resulted in no loss of pay or benefits. The court said, "the record must contain substantial evidence that Solano Prison in fact presented a less desirable work environment than CMF, and, further, that the change was not just somewhat less pleasant, but had materially adverse consequences comparable in significance to a demotion, a decrease in wages or salary, a less distinguished title, a material loss of benefits, or significantly diminished responsibilities."

As for actual evidence, the court went through a number of assertions McRae made about the dangerousness of Solano Prison and the increased difficulties of working there, but the court discounted them all as being without evidence.

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