1. EEOC and Whistleblower Complaints
FPELRA’s 40th Anniversary Annual Training
February 10, 2014
Janet Goldberg McEnery
Macfarlane Ferguson & McMullen
Phone:

2. The information provided in this presentation is not a substitute for legal advice. If you have any questions concerning these materials as it relates to your business, please contact an attorney.
© 2014 Janet Goldberg McEnery
Macfarlane Ferguson & McMullen
All Rights Reserved
These materials may not be reproduced
in any way without written permission.

3. Retaliation claims are on the rise.
Over the past 15 years EEOC retaliation
charges have doubled.
In 2012, 38% of all EEOC
charges alleged retaliation.
Retaliation charges topped
all others (including race and gender).

4. What is the basis for this increase?
Anti-retaliation is a protection afforded by every law enforced by the EEOC.
The past 5+ years has seen a steady expansion of “whistleblower” protection (judicial and legislative).
A recognition that juries believe that retaliation is a normal human reaction.

5. A Little History Lesson
Robinson v. Shell Oil Co. (1997) – the Supreme Court ruled that “employee” under Title VII includes former employees.
Thompson v. North American Stainless NP (2011) – the Supreme Court ruled that an employee whose fiancé filed an EEOC charge was within the “zone of interest” for protection from retaliation.

6. Kasten v. Saint-Gobain Performance Plastics (2011) The Supreme Court ruled that the anti-retaliation provision of the FLSA protects employees who make oral complaints (even though the FLSA references “filing” a complaint).

7. Burlington Northern v. Santa Fe Railways White (2006) – The Supreme Court expanded the definition of “adverse action” to whenever the action would have the effect of discouraging a “reasonable employee” from complaining about discrimination.

8. What does a Plaintiff have to establish in order to state a claim for retaliation?
Protected Activity
Adverse employment action
Termination
Reassignment or transfer
Pay decrease
Change in duties, responsibilities or working conditions
Actions which would discourage a “reasonable employee” from complaining
Casual connection, or not wholly unrelated.

9. What is protected activity
Participating in an investigation, proceeding or hearing under Title VII, ADA, ADEA
Opposing discriminatory practices

10. Opposition Activities
Complaining
Threatening to file a charge
Participating in an employer’s internal investigations (e.g. a claim of harassment made under the employer’s policy)
Caution: there is a tendency to broadly define protected “opposition” activities

11. “Protected” See Hiter v. Multibrand EC Inc. (D. Ill. 2013)
A Warehouse Manager received an message from a subordinate complaining that two co-workers engaged in “shameless flirting,” conversations about their personal lives and comments about their sexual activities at work. The subordinate called it disruptive “high school drama!” The Warehouse Manager forwarded the to her manager with no comment.
“Protected”

12. “Protected”
The Warehouse Manager’s employment was terminated 8 days after forwarding the .
Why?
The Warehouse Manager sued for discrimination and retaliation, but dropped the discrimination claim.

13. “Protected” What was the Warehouse Manager’s protected conduct?
Did the Warehouse Manager take any step to oppose discrimination?

14. “Protected”
Does an employee have to use certain “magic words”- like “sex discrimination” or “hostile environment”?
Does the employee have a subjectively sincere and objectively reasonable belief that he was opposing unlawful conduct under Title VII?

15. “Protected”
Is active resistance required to show the employee “opposed” unlawful conduct covered by Title VII?
Is the passive act of furnishing an enough to be protected activity?
Does the basis of the complaint being made have to be more than an interpersonal dispute?

16. Beware of Shooting the Messenger Court held: it would be incorrect to conclude as a matter of law that the Warehouse Manager’s forwarding of the subordinate’s did not constitute protected activity In other words, disputed facts prevent a finding that the Plaintiff did not engage in protected activity. Determining credibility is a job for the jury, not for the Court on summary judgment

17. Employees generally try to meet their burden by attempting to show:
The employer did not investigate.
The employee received unequal treatment.
“Suspicious timing”-the employer took action against the employee close in time to the protected conduct.
There was a pattern of adverse action toward complaining employees.

18. Employees generally try to meet their burden by attempting to show:
Pretext-The employer does not have a legitimate explanation (or has a false explanation) for the adverse action.
“Ambiguous” statements that evince a retaliatory motive
“Significant, unexplained, or systematic deviations” from an employer’s usual practices.

19. History Lesson Continued!
In 1991, Congress amended Title VII, to provide that a complaining party only has to establish that race, color, religion, or national origin was a motivating factor. Confusion – Did this new standard apply to retaliation or only to discrimination claims?

20. Nassar v. University of Texas, U.S. S. Ct. 2013
Nasser was employed at the University and at an affiliated clinic (the “Hospital”). The Hospital told Nasser that it would hire him into a staff physician position if he resigned from the University.

21. Nassar v. University of Texas, U.S. S. Ct. 2013
Nasser submitted his resignation from the University and in his resignation accused his Director of discrimination. The University opposed the Hospital’s decision to hire a non-University physician. As a result, the Hospital withdrew its offer to Nasser.

22. Nassar v. University of Texas, U.S. S. Ct. 2013
Nasser sued for retaliation. The jury awarded him $4 million. The Court reduced the amount to $1.2 million. In a 5-4 decision (June 24, 2013), the Supreme Court reversed, holding An employee must prove the adverse action would not have occurred “but for” the desire by the employer to retaliate against the employee.

23. Nassar v. University of Texas, U.S. S. Ct. 2013
What does Nasser mean? Will there be fewer claims brought for retaliation? Will fewer claims for retaliation go to a jury?

24. Questions
Does a complaint for discrimination have to be meritorious before it can support a claim for retaliation?
What should you do when you receive an EEOC complaint alleging something you know is not true?
What about a claim of whistleblower status from someone facing discipline?

25. Pop Quiz – Scenario I
Patty Plaintiff worked for ABC County for 4 months, when she filed a charge of discrimination with the EEOC. The EEOC scheduled a mediation. After the initial joint session, the EEOC mediator separated the parties and engaged in shuttle diplomacy.

26. Pop Quiz – Scenario I
After Patty received a settlement proposal she thought was too low, Patty stormed into ABC County’s room shouting “you can take your f_____g proposal and shove it up your ____. You go ahead and fire me and I’ll see you in court. Patty stalked out, slamming the door and leaving the County representatives shaking. Within an hour, ABC County accepted Patty’s counterproposal and fired her.

27. Pop Quiz – Scenario I
What do you think happened next? Was ABC guilty of retaliation when it fired Patty? Did ABC properly discharged Patty for misconduct? What was the protected conduct? Was Plaintiff’s conduct of storming into the other party’s separate caucus room during mediation protected? Would your answer be different if Patty punched one of the ABC County representatives?

28. Pop Quiz – Scenario I
See Benes v. A.B. Data, Ltd., 7th Cir., July 26, 2013 Section 2000 e-3(a) does not forbid all responses to the filing of charges. It forbids only those that would dissuade a reasonable worker from making or supporting a charge of discrimination.

29. Pop Quiz – Scenario II
Rush, Rush & Delay (“RR&D”) hired John Butt as a 5th year associate in RR&D had an “up or out” policy for associate attorneys. If an associate did not make partner in 9 years, he/she had to leave. Of the 50 or so 2005 law school graduates hired by the firm, only 8 remained as of Attorney Butt was a Harvard grad and at first his reviews were good, but by 2012, he was told that making partner was a long shot.

30. Pop Quiz – Scenario II
In December of 2013, Attorney Butt was told he would not make partner. Attorney Butt asked two RR&D partners to write him a reference for an Assistant U.S. Attorney position and they agreed. Attorney Butt was told that he would receive six months severance and could use his office until he found another job.

31. Pop Quiz – Scenario II
Butt then filed a charge with the EEOC claiming race discrimination. RR&D then offered Butt two additional months severance in exchange for a release. Butt refused.

32. Pop Quiz – Scenario II
The two RR&D partners then refused to give Butt the reference letter they had promised. They said they felt Butt’s claim of discrimination was false and they could not in good conscience recommend him. In addition, RR&D told Butt that they would no longer allow him to use their offices.

33. Pop Quiz – Scenario II
The EEOC found for RR&D on discrimination and for Butt on retaliation. Butt then sent the determination letter on his retaliation claim to Harvard to be posted. So, RR&D sent the determination letter on the discrimination claim (which included personal information about Butt’s performance) to Harvard. What did the Court do? See John H Rug III v. Ropes and Gray LLP, Mass. Dist. Ct., August 16, 2013

34. Pop Quiz – Scenario II
Is locking an employee out of the employer’s offices after the employee has already been terminated an adverse action? What about the failure to provide recommendation letters?

35. Pop Quiz – Scenario III
Erin Brockowitch worked at XYZ Hospital as a medical technician. Erin worked for 4 years without complaint but recently posted on her Facebook page that her supervisor was a “snake” and “he needs to keep his creepy [sic] hands to himself.” The supervisor went HR with the post. HR asked Erin if she wrote the posts.

36. Pop Quiz – Scenario III
Erin denied writing the posts 3 times before finally admitting that she authored the posts. XYZ immediately launched an investigation into the “creepy hands” allegation. Erin said that for the last 4 years, her supervisor put his hands on her sleeve and also on the back of her shirt to show how unusually cold his hands were.

37. Pop Quiz – Scenario III
The supervisor admitted occasionally touching her and other employees on the arm to show them how cold his hands were. The Hospital’s investigator also noted that in the 4 years Erin worked at XYZ, she never reported the conduct.

38. Pop Quiz – Scenario III
XYZ concluded its investigation. It found the supervisor did not violate a policy, however the supervisor received additional training. XYZ also fired Ms. Brockowitch. XYZ gave as its reasons: lying, dishonesty, and disruption

39. Pop Quiz – Scenario III
Debord v. Mercy Health Systems of Kansas, Inc., 10th Cir., November 26, See also EEOC v. Total Systems, 22 F. 3d 1171 (11th Cir. 2000)( Employee was discharged for lying in an employer’s internal investigation of sexual harassment. The District Court granted summary judgment to the employer. The employee could be properly discharged based on the employer’s good faith belief that she lied in an internal investigation.)

40. Pop Quiz – Scenario III
But use caution: There is a big difference between a lie in an internal investigation and a lie in an EEOC investigation.

41. Pop Quiz – Scenario IV
Sue M. Blind was the HR Director and was tasked with investigating a claim of sexual harassment with another manager.

42. Pop Quiz – Scenario IV
Sue interviewed the complaining employee alone without the other manager in violation of policy. The complaining employee reported to Sue that not only had her supervisor harassed her but he also raped her. The complaining employee asked that the police (and her husband) not be notified. Nevertheless, Sue repeatedly recommended to management that law enforcement be contacted.

43. Pop Quiz – Scenario IV
Sue was terminated two months later for failing to follow policy during the investigation of the sexual harassment complaint Does Sue have enough to pursue a claim of retaliation? What is the “protected conduct”?

44. Costs
According to a UCLA-RAND Center for Law and Public Policy study the median costs for legal fees to an employer in an employment law discrimination case that goes to trial is $150,000. The median cost for summary judgment is $75,000. This does not include any amount paid to the employee in settlement or as a result of an adverse decision.

45. Conclusions
Make sure there is a procedure for employees to file complaints internally.
Distribute the procedure to all employees (and be able to show it was distributed).
Train supervisors. Supervisors and managers need to understand the parameters of what is and what is not “protected activity” under the non-retaliation statutes.

46. Conclusions
Encourage complaints to be taken in writing. Pin the complainant down on what the complaint is.
Investigate. Document. Be thorough. Report your findings to the employee. Conclude your investigation.
Counsel supervisors that no derogatory comments should be made. Supervisors and managers need to behave professionally.

47. Conclusions Don’t live in fear of a retaliation claim.
From a practical standpoint, the benefit of Nasser is that an employer who has a well-documented file and reaches reasonable and justifiable employment decisions (including a decision to terminate an employee who has engaged in protected activity) should be able to proceed.
Encourage and maintain, good consistent documentation, consistent discipline, and robust training programs to help contain these risks.

48. It’s as clear as mud Any Questions? Janet Goldberg McEnery
Macfarlane Ferguson & McMullen
Phone: