Employer “Sick and Tired” of EEOC Charges Not Liable for Retaliation

"sick and tired" EEOC retaliation Title VII
Sometimes, an employer “sick and tired” of EEOC complaints can fire an employee without violating Title VII’s anti-retaliation provisions.

The Eleventh Circuit Court of Appeals recently found that an employer who was “sick and tired” of EEOC complaints was not liable for retaliatory discharge of an employee.  Matthews v. City of Mobile, No. 16-13155, 2017 WL 3500052 (11th Cir. Aug. 15, 2017).  Cassandra Matthews was employed by the City of Mobile, Alabama as a Public Safety Dispatcher II in the Mobile Police Department’s Communications Unit.  When the City received 911 calls, Matthews was responsible for identifying emergencies, dispatching law enforcement officers and notifying officers of any updated information provided by callers.

On November 21, 2012, Matthews dispatched police officers to the scene of a fight.  Immediately after dispatching officers, she took a personal phone call.  A 911 operator attempted to inform Mathews that a weapon was reported at the scene.  But, Matthews did not provide that updated information to the dispatched officers.

Thereafter, Matthews met with Mobile’s Chief of Police, Michael Williams.  Williams transferred Matthews to a Traffic Unit while the Department conducted  an investigation of her failure to update the officers.  During the meeting, Williams mentioned EEOC complaints previously filed by Matthews and said that he was “sick and tired” of her EEOC complaints.  Matthews testified that Williams had her EEOC complaints on his desk during the meeting.  Matthews had filed:  (1) an EEOC charge in October 2011; (2) a second EEOC charge in February 2012; (3) a federal discrimination law suit in May 2012; (3) a third EEOC charge in October 2012; and, (4) an internal complaint of harassment and discrimination in November 2012.

On January 24, 2013, Matthews received a hearing before a Trial Board of three members — each appointed by Chief Williams.  That  Board recommended her termination for neglect of duty.

The Eleventh Circuit found that Matthews’ termination was not retaliation for her EEOC complaints.  Instead, the Court found that Matthews failed to demonstrate that the reason for termination (taking a personal call while on an emergency dispatch) was a false reason.  The Court further found that Williams'”sick and tired” statements were essentially absolved by the involvement of the Trial Board.  Even though Williams appointed the Trial Board, Matthews offered no evidence that the Board knew of her EEOC complaints, and the Court concluded that it would be impermissibly speculative to impute any such knowledge.

Matthews represents the extremely rare case where an employer can make reference to an employee’s EEOC charges during termination, and manage to avoid liability for retaliation.  For other employers, my advice is to avoid any reference to past discrimination complaints if an employee engages in misconduct worthy of termination.

EEOC Cannot Revive Claim Barred By Statute of Limitations

EEOC statute of limitations
The EEOC cannot revive a discrimination claim that is barred by the statute of limitations.

The Eleventh Circuit Court of Appeals recently held that the United States Equal Employment Opportunity Commission (“EEOC”) cannot revive a discrimination claim that is barred by the statute of limitations.  See Stamper v. Duval County School Bd., No. 15-11788, 2017 WL 3033148 (11th  Cir. Jul. 18, 2017).

In 2007, Stamper filed a charge of race and disability discrimination.  On February 26, 2009, the EEOC issued a dismissal and notice of rights (also known as a “right to sue letter”) concluding that it could not establish a violation of the statutes.  Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act both required Stamper to file a law suit (if any) within 90 days of the right to sue letter.  Yet, Stamper did not file suit.

Instead, on July 9, 2011, Stamper filed a request for reconsideration with the EEOC.  On December 15, 2011, the agency sent Stamper a “Notice of Revocation,” which attempted to vacate the dismissal of her first charge and revoked the letter terminating processing of that charge.  Stamper then filed a second charge of discrimination, and she received a second notice of right to sue on November 5, 2012.  Stamper then filed suit within 90 days.  A trial court found that her lawsuit was untimely and the Eleventh Circuit affirmed.

The Court relied upon the agency’s own regulations.  In particular, 29 C.F.R. § 1601.19(b) allows the EEOC to reconsider a decision to dismiss a charge of discrimination.  But, that regulation only affects the 90-day statute of limitations if the EEOC reconsiders within 90 days of its dismissal decision.  In short, if the EEOC reconsiders within 90 days, the right to sue is revoked and the statute of limitations is re-set.  But, if the EEOC reconsiders after 90 days, the right to sue is not revoked and the statute of limitations is not affected.

In this case, the EEOC reconsidered Stamper’s right to sue more than two years after the fact.  As a result, the Eleventh Circuit found that it did not properly revive Stamper’s claims, and affirmed dismissal.

Arbitration Clause Validity: Employees Must Demand Jury Trial On a Specific Issue

arbitration validity jury trial
Employees challenging the validity of an arbitration agreement must ask for a jury trial on the specific issue in dispute.

An employee who contests the validity of an arbitration agreement, and wants a jury to determine validity, must demand a jury trial on the specific issue in question.  See Burch v. P.J. Cheese, Inc., No. 13-15042, 2017 WL 2885095 (11th Cir. Jul. 7, 2017).  This is an interesting procedural issue which could trap many unwary lawyers.  Typically, a lawyer filing a complaint for an employee (called the “plaintiff” in court) will make a generalized request at the end of the complaint:  “Plaintiff Demands a Trial By Struck Jury.”  In Burch, the Eleventh Circuit Court of Appeals found that a generalized request for a jury trial is insufficient to actually obtain a jury trial on issues affecting the validity of an arbitration clause.

In Burch, the employee attempted to sue his former employer for discrimination in federal court in Alabama.  After being sued, the employer provided the court with a  copy of an employment contract containing an arbitration clause, and asked the court to compel arbitration.  The employee resisted arbitration by claiming that the signature on the employment contract was not his.  As a result, there was a factual issue on whether a valid, binding arbitration agreement existed.  If the employee signed the agreement, he could be compelled to arbitrate his claims.  If he did not sign the agreement, he was entitled to continue litigating in federal court.

The employee claimed that he was entitled to have a jury determine whether he actually signed the agreement.  Nevertheless, the Eleventh Circuit found that he waived any right to a jury trial on the validity of his signature.  The Court found that the generalized request for a jury trial in his complaint was not sufficient. Instead, the Federal Rules of Civil Procedure and the Federal Arbitration Act required the employee’s lawyer to demand a jury trial on the specific issue of the signature’s validity at the same time that he generally opposed the motion to compel arbitration.  Because the employee’s lawyer failed to file a jury demand on that specific issue, the employee waived his right to a jury trial.

This issue made its way to the Eleventh Circuit, because the judge in Alabama conducted a bench trial and determined that the employee’s signature was valid.  After the judge compelled arbitration, the employee appealed.   In most cases, juries are perceived to be more sympathetic to employees than judges.  As a result, employees want juries to determine as many issues as possible.   The Burch case provides an additional procedural defense to employers seeking to avoid juries, and also represents a procedural roadblock that could catch some lawyers by surprise.

Employee Ordered to Pay Employer’s $235,000 Legal Bill

Fees frivolous employment discrimination claim
An employee was ordered to pay $235,249.80 in legal fees after filing a frivolous discrimination claim.

The Eleventh Circuit Court of Appeals just gave employees a reason to think twice before filing a frivolous law suit.  The Court required an employee to pay his employer $235,249.80 for filing a frivolous employment discrimination claim.  See Hamilton v. Sheridan Healthcorp, Inc., No. 16-10667, 2017 WL 2665040 (11th Cir. Jun. 21, 2017)(“Hamilton II“).  This was the second time that Dr. Dwain Hamilton filed an appeal with the Eleventh Circuit.

In 2015, the Court affirmed dismissal of Dr. Hamilton’s discrimination claims against his employer, Sheridan Healthcorp.  See Hamilton v. Sheridan Healthcorp, Inc., 602 Fed. App’x 485 (11th Cir. 2015)(“Hamilton I“).  In Hamilton I, Dr. Hamilton claimed that he was transferred from a night shift position to day shift, and later terminated, because of his race.  But, the trial court and the Eleventh Circuit both found that he was unable to establish a basic, prima facie, case of discrimination.  Dr. Hamilton also attempted to claim that he was terminated in retaliation for complaining about discrimination.  Yet, the Eleventh Circuit found that he offered no evidence to support that claim, and actually changed his testimony in an after-the-fact attempt to create a claim.

After prevailing, Sheridan Healthcorp asked the trial court to award it $235,249.80 in attorneys’ fees spent defending Hamilton I.  Employers rarely win such requests, because fees can only be awarded if an employee’s claim is “frivolous, unreasonable, or groundless.”  Christianburg Garment Co. v. EEOC, 434 U.S. 412, 422 (1978).  Courts are usually reluctant to call any claim “frivolous,” but that’s exactly what the trial court did in Hamilton II.  The Eleventh Circuit reviewed the trial court’s decision and affirmed in Hamilton II.

Hamilton II provides a warning to employees:  Think carefully before filing that employment discrimination claim.  If a court finds that claims are frivolous, then the employee is potentially on the hook for the employer’s legal fees.

Here’s One Strategy for Challenging EEOC Document Requests

EEOC documents
In appropriate circumstances, employers can challenge the EEOC’s requests for documents

The United States Equal Employment Opportunity Commission is required to review many claims for discrimination, including claims under Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, and the Americans with Disabilities Act.  In the course of investigating discrimination claims, the EEOC frequently asks employers to produce documents related to the claim.  If the employer refuses to produce documents, the EEOC can issue an administrative subpoena and ask federal courts for assistance in enforcing the subpoena.

A Wendy’s restaurant franchisee in Tennessee recently won a victory for employers in resisting a far-reaching document request.  EEOC v. Southeast Food Svcs. Co, No. 3:16:MC-46-TAV-HGB, 2017 WL 1155040 (E.D. Tenn. Mar 27, 2017).   In that case, the franchisee offered a promotion to an employee, but required the employee to sign a release of all potential claims in order to receive the promotion.  Even though she possessed no claims, the employee refused to sign the release.  As a result, the franchisee withdrew the promotion offer.  Thereafter, the employee claimed that withdrawal of the promotion was discriminatory.  The franchisee admitted the reasons for withdrawing the promotion, but denied any discrimination.

While investigating the employee’s claim, the EEOC submitted a document request and a subpoena seeking the identity and contact information of all:  (1) current and former employees since December 4, 2012; (2) current and former employees who signed a release since December 4, 2012; and, (3) current and former employees promoted since December 4, 2012.  When the franchisee refused to provide that information, the EEOC filed an application in federal court for enforcement of the subpoena.

The EEOC’s subpoena authority is broad.  It can obtain any information that is :  (1) related to unlawful employment practices; and, (2) relevant to the charge under investigation.  42 U.S.C. § 200e-8(a).  Most disputes with the EEOC focus on the relevancy requirement.  In the Wendy’s case, the Court found that the EEOC did not meet its burden of demonstrating relevance.  While the request for information might be relevant to other potential claims, it was not relevant to this case, where it was undisputed that the promotion was denied for failure to sign the release.

The Tennessee court relied heavily upon the Eleventh Circuit’s decision in EEOC v. Royal Caribbean Cruises, 771 F.3d 757 (11th Cir. 2014).  In that case, the Eleventh Circuit noted that the term “relevant” has been generously construed in the EEOC’s favor, but that it should not be so broadly construed as to render the relevancy requirement ” a nullity.”  Id. at 760.  The Eleventh Circuit recognized that, sometimes, broad-reaching requests might be necessary, “where statistical data is needed to determine whether an employer’s facially neutral explanation for the adverse decision is pretext for discrimination.”  Id. at 761.  But, like the Wendy’s court, the Eleventh Circuit found that expansion of an investigation for discovery of potential, other claims was not a “relevant” reason.

Employers should carefully consider whether to resist a request for documents from the EEOC.  In many cases, the EEOC requests legitimate, “relevant” information related to a charge of discrimination, and employers should comply with information requests in those cases.  But, in some cases, the EEOC is clearly attempting to expand the scope of an investigation beyond the parameters of a particular case.   The Wendy’s case and the Royal Caribbean case provide employers with good arguments for contesting those types of subpoenas.



Retaliation: Employees on Thin Ice Can’t Save Their Jobs with Discrimination Complaints

Thin Ice retaliation
Employees on thin ice can’t save their jobs by making insincere claims of discrimination.

People don’t like to get fired from their jobs.  Thanks to the wonders of the internet, many employees also know that several employment laws (like Title VII of the Civil Rights Act of 1964) prohibit retaliation for making complaints of discrimination.  As a result, employees who know that their jobs are in trouble will frequently make last-minute claims of discrimination in the hope that their employer will not fire them — for fear of a retaliation law suit.

This tactic has become so commonplace that the Eleventh Circuit Court of Appeals has developed a line of cases which protect employers from such retaliation law suits.  Those cases focus on the concept of causation.  As part of his/her case, an employee claiming retaliation must show that termination was caused by the discrimination complaint.  In most cases, close timing between the complaint and termination is sufficient to establish causation.   But, there are exceptions to every rule, and the Eleventh Circuit has created an exception to the general rule on causation.  Close timing “between the protected activity and the adverse action alone generally cannot show causation when the employer has contemplated the adverse action before the protected activity takes place.”  Tucker v. Florida Dept. of Transport., No. 16-10420, 2017 WL 443632 at *3 (11th Cir. Feb. 2, 2017).

In short, if an employer is contemplating termination before an employee claims discrimination, then the employee must show more than close timing if he/she wants to win a retaliation claim.  The Eleventh Circuit provides the following rationale for that rule:   “Title VII’s anti-retaliation provisions do not allow employees who are already on thin ice to insulate themselves against termination or discipline by preemptively making a [ ] complaint.”   Id.

As a practical matter, I strongly encourage any employer “contemplating” termination to have documentation in support of termination prior to making the decision.  Additionally, employers should also proceed cautiously any time an employee complains about discrimination.  Sometimes, even last-minute discrimination complaints have merit, and employers should ensure that no discrimination occurs in the workplace.


Belief “From the Heart” Cannot Prove Discrimination

Belief heart discrimination
A belief “from the heart” is insufficient to prove discrimination.

I frequently tell clients:  “There’s a difference between what you know and what you can prove.”  A quick internet search tells me that I’ve been stealing that line from Tom Cruise in “A Few Good Men.”  Even so, the maxim is really the foundation for our court system.  Even if you know something “in your bones” (as my Dad used to say), you have to provide admissible evidence in court.  The Eleventh Circuit Court of Appeals recently hammered that point home in a recent Title VII discrimination case: Mells v. Secretary Dept. of Veterans Affairs, No. 15-14251, 2017 WL 60387 (11th Cir. Feb. 15, 2017).

In Mells, an employee sued for racial discrimination arising from denial of a promotion.  The undisputed evidence showed that a four-person interview panel ranked Ms. Mells lower than other applicants.  Nevertheless, Ms. Mells argued that a biased supervisor selected the four-person panel.   Ms. Mells believed “in her heart” that there was a possibility that the interview panel was swayed by the biased supervisor.

The Eleventh Circuit rejected that argument:  “Although Ms. Mells may be inclined to follow her heart, we, like the district court, are required to follow the evidence.”  The Court found no evidence that the interview panel was biased or swayed by the supervisor.  As a result, the Court affirmed dismissal of her claims.  Notably, the Eleventh Circuit rejected these matters of the heart on the day after Valentine’s day, but there is no reference to Valentine’s in the opinion.

Mells provides two lessons.  First, it demonstrates the benefits of using interview panels in hiring and promotion decisions.  If an applicant later attempts to sue for discrimination, they face a heavy burden to show bias of the entire panel.  Second, in every case, employees (and employers) must present more evidence than mere “belief” if they want to win.

Discrimination: Sometimes, ignorance is a good excuse.

Ignorance discrimination knowledge
If a decision maker lacks knowledge of an employee’s protected class, an employer may possess an additional defense to discrimination claims.

We’ve all heard the phrase:  “Ignorance of the law is no excuse.”  Indeed, that point has been driven-home to at least one employer in Alabama:  Ignorance of the Law is No Excuse  While ignorance of the law is not a good excuse, sometimes, ignorance of the facts can provide employers with a defense to employment discrimination claims.

The vast majority of federal employment laws only prohibit intentional discrimination.  As a result, if a decision-maker possesses no knowledge (i.e. ignorance) of an employee’s protected status, then numerous decisions hold that there was no intentional discrimination.  For example, an employee suing under the Americans with Disabilities Act must prove that he or she was fired “because of” a disability.  But, the Eleventh Circuit Court of Appeals has clearly held that “a decisionmaker who lacks actual knowledge of an employee’s disability cannot fire the employee ‘because of’ that disability.”  Cordoba v. Dillard’s, Inc., 419 F.3d 1169, 1186 (11th Cir. 2005).  The Court has reached similar conclusions in cases involving allegations of: religious discrimination under Title VII of the Civil Rights Act of 1964, Lubetsky v. Applied Card Sys., 296 F.3d 1301, 1306 (11th Cir. 2002)(” an employer cannot intentionally discriminate against an individual based on his religion unless the employer knows the individual’s religion.”); and,  retaliation under Title VII,  Brungart v. BellSouth Telecomm., Inc., 231 F.3d 791, 799 (11th Cir.2000) (“A decision maker cannot have been motivated to retaliate by something unknown to him.”).

This post is not intended to encourage employers and decision makers to remain blissfully ignorant of issues in the work place.  Indeed, ignoring work conditions can quickly lead to more law suits.  But, if a decision maker was truly unaware that a terminated employee was part of a protected class, then there is a potential defense to an employment discrimination claim.

Asperger’s at Work: Potential for Conflict Between Title VII and ADA



A recent decision from the Eleventh Circuit Court of Appeals demonstrates difficult decisions that may face employers when they hire employees with Asperger’s syndrome.  Furcron v. Mail Centers Plus, LLC, No. 15-14595, 2016 WL 7321211 (11th Cir. Dec. 16, 2016).  Asberger’s is generally considered a “high functioning” form of autism.  Affected persons “have difficulty with social interactions and exhibit a restricted range of interests and/or repetitive behaviors.” https://www.autismspeaks.org/what-autism/asperger-syndrome

In Furcron, Myra Furcron was a female mailroom clerk, who claimed that she was sexually harassed by Daniel Seligman, a male mailroom clerk suffering from Asperger’s.  Furcron claimed that Seligman attempted to look down her shirt and at her underwear when she bent over.  She also claimed that Seligman would intentionally bump against her and rub his erect penis against her.  When she complained, Furcron’s supervisor responded “that Seligman meant no harm, and that his conduct should be tolerated because of his disability.”  Furcron, 2016 WL 7321211 at *2.  Although a trial court dismissed Ms. Furcron’s claims, the Eleventh Circuit found sufficient evidence of sexual harassment to warrant a jury trial.

Another case involving Asperger’s is Taylor v. Food World, Inc., 133 F.3d 1419 (11th Cir. 1998). In Taylor, the plaintiff suffered from Asperger’s and was a utility clerk who bagged groceries and assisted customers with their groceries.  He was terminated after three customers complained that he was “loud, overly friendly and overly talkative.”  He sued for violations of the Americans with Disabilities Act.  The Court found that one of the essential functions of the job was “the ability to carry out the tasks of the job without offending customers.”  Taylor, 133 F.3d at 1424.  Nevertheless, the Court found sufficient evidence to warrant a jury trial, because some managers and employees testified that they received no complaints and observed no inappropriate behavior.  Additionally, there were questions of fact regarding whether the questions asked by the plaintiff to customers were offensive or inappropriate.

A final case merits discussion, even though it deals with Tourette’s syndrome instead of Asperger’s.  Ray v. Kroger Co., No. 03-12919, 2003 WL 23018292 (11th Cir. 2003).  In Ray, a grocery store employee’s condition caused him to blurt out racial slurs on a daily basis.  As an accommodation to his disability, the store allowed him to pass out cards to customers explaining his condition, and transferred him to the night shift when fewer customers were in the store.  Nevertheless, three customers complained about bizarre and anti-social behavior, and a contractor complained about a perceived racial insult.  The Court affirmed dismissal of Ray’s ADA case, because he could not demonstrate that he could perform the essential function of “interacting with customers without insulting them.”

These cases seem to place employers in a Catch-22 situation.  If they discipline an employee for behavior related to their disability, they face the threat of a law suit for violating the Americans with Disabilities Act.  But, if they fail to discipline the employee, the employee could then commit acts (like the alleged sexual harassment in Furcron) that get the employer sued by other employees or third-parties.

Employer should proceed slowly if they encounter performance issues from employees suffering from Asperger’s, Tourette’s or other conditions that affect behavior.  Ray and Taylor both suggest that it may be possible to discipline such employees without violating the ADA.  To do so, however, employers need to establish, at a minimum that:  (1) the ability to interact with customers and co-workers without offending them is an essential function of the job; and, (2) abundant evidence existed demonstrating the employee’s inability to fulfill that essential function.

Earnhardt!!! Junior’s Car Dealership Wins Discrimination Case

NASCAR discrimination
Dale Earnhardt, Jr.’s car dealership won a recent discrimination case.

In a sweeping victory for NASCAR fans, the Eleventh Circuit Court of Appeals recently affirmed dismissal of a discrimination law suit against Dale Earnhardt, Jr. Chevrolet.  Wilson v. Dale Ernhardt, Jr. Chevrolet, No. 15-15352, 2016 WL 6211818 (11th Cir. Oct. 25, 2016).  (It appears that the parties or the Court incorrectly spelled Dale, Jr’s name “Ernhardt”).

Glenda Wilson claimed that Earnhardt Chevrolet refused to promote her to a guest service manager position because she was black and older than the three women hired for the position.  Yet, Ms. Wilson’s discrimination claims were undermined by her own actions.   After Ms. Wilson filed a charge of discrimination with the EEOC, the general manager of the car dealership twice asked if she would like the position.  On the second occasion, Ms. Wilson said that she was not interested in the position.

Additionally, Ms. Wilson never applied for the guest service manager position.  She argued that it would be futile to apply because an operations manager told her that she would suffer a reduction in wages if she accepted the position.  But, she never asked other service managers what they made, so that she could compare salaries.  Moreover, the general manager testified that he actually told Ms. Wilson she would not suffer a reduction in pay.

Based upon all of the those facts, the Eleventh Circuit affirmed a decision by the trial court to dismiss Ms. Wilson’s claims.  Wilson provides a useful lesson for employers faced with discrimination claims.  Many times, the best way to combat a discrimination claim is to offer the  employee what they want when you learn about the claim.  If the employee rejects that offer, then their claim for damages is severely reduced.  By offering Ms. Wilson the position she desired, the dealership also created valuable evidence that helped negate the discrimination claim.