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“Manager Rule” Protects Tuskegee From Retaliation Claim

April 27, 2016Robert C. Lockwood

Manager

On April 21, 2016, Senior United States District Judge W. Harold Albritton found that Tuskegee University’s former Director of Human Resources, Ruby McMullen, could not sue the University for retaliation under Title VII of the Civil Rights Act of 1964. See McMullen v. Tusekegee University, No. 3:15CV16-WHA, 2016 WL 1601040 (M.D. Ala. Apr. 21, 2016). Judge Albritton’s decision hinged upon the fact that Ms. McMullen’s arguably protected conduct occurred in the course of her normal job performance as Director of Human Resources.

On December 2, 2013, Tuskegee employee Tracy Boleware filed a complaint alleging harassment by University Vice-President Dr. Mohammad Bhuiyan. Later that day, McMullen attended a meeting with Bhuiyan and the University’s General Counsel where termination of Boleware’s employment was discussed. McMullen warned that termination of Boleware was, or might appear to be, retaliation for her harassment complaint. McMullen was told that the University’s president had decided prior to December 2 to terminate Boleware’s employment.

After the December 2 meeting, McMullen met with the University President who told her that he did not feel she was on his team and wanted to let her know where she stood. She also attended a subsequent meeting with the President, Bhuiyan and the General Counsel where they complained that she did not warn them about retaliation. McMullen protested that she warned them in the December 2 meeting about the appearance of retaliation.

McMullen’s employment was terminated on January 21, 2014. McMullen then sued Tuskegee for retaliation. She claimed that Tuskegee retaliated against her, because she opposed the retaliatory termination of Boleware.

Judge Albrtitton granted summary judgment and dismissed the retaliation claim. In part, he relied upon the “manager rule,” which holds: “a management employee that, in the course of her normal job performance, disagrees with or opposes the actions of an employer, does not engage in ‘protected activity.'” McMullen, 2016 WL 1601040 at *4. “Instead, the employer engages in protected activity if she crosses the line from being an employee performing her job, to an employee lodging a personal complaint.” Id. at *5. Because McMullen opposed termination of Boleware in the course of her normal job performance as Director of Human Resources, Judge Albritton found that she could not successfully sue Tuskegee for retaliation.

The “manager rule”provides an effective defense for employers who are sued by managerial employees for retaliation. Those employees are frequently required to give their advice and input regarding termination decisions. If those managerial employees are later terminated themselves, the “manager rule” makes it very difficult for them to claim retaliation based upon their involvement in other termination decisions.

General Complaints About “Harassment” Are Not Protected By Title VII

April 25, 2016Robert C. Lockwood

On April 18, 2016, United States District Court Judge David Proctor confirmed that generalized complaints by employees about “harassment” are not protected by Title VII. Instead, the “harassment” complained about must be harassment that is prohibited by Title VII. See Ellison v. City of Birmingham, No. 2:14-CV-00154-RDP, 2016 WL 1554927 (N.D. Ala. Apr. 18, 2016).

In Ellison, the employee sued for retaliation under Title VII of the Civil Rights Act of 1964, alleging that she was terminated for complaining about being harassed. But, when complaining about harassment, an employee can only succeed if she possesses “a good faith, objectively reasonable belief that such harassment was unlawful under Title VII.”

While the employee in Ellison unquestionably complained about the way she was treated at work, Judge Proctor found that she did not complain about treatment that violated Title VII. Instead, she complained about being: deemed a “troublemaker,” called a “devil” for “keeping up mess,” and called “baby duck” for following around behind a friend of hers. Judge Proctor found that those complaints were merely about “unspecified personal conflict” and “wholly unrelated to Title VII.”

Judge Proctor’s decision simply reinforces the well-established principal that Title VII is not a “workplace civility code.” Thus, not all “harassment” violates Title VII, and merely complaining about “harassment” does not grant protection under Title VII. Instead, only complaints about harassment based upon a protected characteristic are entitled to protection.

Best Served Cold: 12 Years Between Protected Conduct and Retaliation

April 19, 2016Robert C. Lockwood

Anger

On April 6, 2016, Chief United States District Court Judge Keith Watkins sent a Title VII retaliation claim to a jury trial — even though more than 12 years expired between the protected conduct and the retaliatory action. See Pace v. Alfa Mutual Ins. Co., No. 2:13-CV-697-WKW, 2016 WL 1370029 (M.D. Ala. Apr. 6, 2016).

Title VII of the Civil Rights Act of 1964 provides protection to employees who participate in proceedings involving claims of discrimination made by other employees. In Pace, Mr. Pace provided interviews and deposition testimony in September 2000 in connection with a sexual harassment claim made by a co-worker against Alfa Insurance Company and his direct supervisor, Alvin H. Dees, Jr. After the interviews and deposition, Dees resigned from employment with Alfa in October 2000. Mr. Pace continued to work with Alfa.

In the fall of 2012, the executive leadership at Alfa changed, and Dees was rehired as Mr. Pace’s supervisor effective February 1, 2013. On January 31, 2013, Mr. Pace and Dees engaged in a telephone conversation in which Dees said: “[B]oy, I bet you thought you’d never have to mess with me again now, didn’t you?” Thereafter, Dees was hostile towards Mr. Pace, and Mr. Pace received a demotion on April 30, 2013. Mr. Pace sued claiming that his demotion was in retaliation for his protected interviews and deposition in 2000.

As part of a retaliation claim, a plaintiff like Mr. Pace must prove that his demotion was caused by his protected conduct (the depositions and interview). The Eleventh Circuit Court of Appeals has generally held that causation is proven by a close period of time between the protected conduct and the adverse job action. But, the Eleventh Circuit has held that a three to four month period of time is too long to prove causation. See Thomas v. Cooper Lighting, Inc., 506 F.3d 1361, 1364 (11th Cir. 2007).

Naturally, Alfa asked Judge Watkins to dismiss the retaliation claim: if three to four months is too long, then 12 years must be far too long. Judge Watkins disagreed and relied heavily upon Dees’s telephone call with Mr. Pace: “The evidence reflects that, on January 31, 2013, the day before officially returning to Alfa, Plaintiff and Dees engaged in a telephone conversation in which Dees said, ‘[B]oy, I bet you thought you’d never have to mess with me again now, didn’t you?’ … Thus, despite the fact that years had passed since the time of Plaintiff’s participation in the Wilson matter, the Plaintiff’s testimony indicates that Dees had not forgotten the circumstances surrounding why he left his employment with Alfa in 2000.” Pace, 2016 WL 1370029 at *9. That finding was sufficient to support causation.

The Pace case is probably an outlier in terms of retaliation claims. Nevertheless, if revenge is a dish best served cold, don’t brag when you are about to retaliate for old protected conduct.

Alabama Supreme Court Allows “At Will” Employee to Sue Based Upon Promises Made During Interview Process.

March 18, 2016Robert C. Lockwood

Fraud

The Alabama Supreme Court recently upheld an award of $600,000 in compensatory damages to an “at will” employee who sued his employer for fraud. See Farmers Insurance Exchange v. Morris, No. 1121091, 2016 WL 661671 (Ala. Feb. 12, 2016). In Morris, the employee was working as an independent insurance agent at his father’s insurance agency. He wanted to continue working for his father, but also join Farmers Insurance Company as an agent. He repeatedly asked Farmers representatives if he could work for both his father and Farmers. He was told that such a relationship was permissible. Although there was conflicting evidence, the jury found that the employee was ultimately terminated by Farmers because of a conflict of interest policy which actually prohibited the employee from working for both Farmers and his father.

The employee argued that Farmers fraudulently induced him into giving up business with his father’s agency — business which Farmers retained after termination. A crucial element of fraud is detrimental reliance — the recipient of a promise takes detrimental action in reliance on the promise. In this case, the employee claimed that he detrimentally relied upon Farmers’ promise that there was no conflict of interest.

Farmers argued that the employee was an “at will” employee of Farmers, who could be terminated from employment at any time. As a result, he could not rely upon his belief that he would continue to work at Farmers and receive payment from Farmers in the future. The Alabama Supreme Court rejected that argument: “When an employee leaves one job for another based on a representation by the new employer regarding the new job that is not true at the time it is made, the new employer cannot hide behind the fact that Alabama law enforces or reads into the new employment contract an ‘at will’ clause to avoid the consequences of its fraud.”

The key lesson for employers is to attempt to learn all of the promises made to potential employees in the course of interviews. This can be a difficult task, but the key is documentation. In the course of interviews, executives need to make comprehensive notes of the questions asked by applicants and the answers given by the executive. With that documentation, employers can better defend potential claims for fraud based upon the interview process.

Four Times that March Madness Impacted Employment Law Suits

March 16, 2016Robert C. Lockwood

In Alabama, we love football. Nevertheless, at this time of year, even die hard football fans can appreciate the drama of March Madness – the NCAA Basketball Tournament. To celebrate March Madness, I found four cases where the basketball tournament was raised as an issue in employment law suits. Since three of those four cases came from Illinois, I think it’s safe to conclude that basketball is big in Mid-West.

1. The “Sore Loser” Defense. Ricco v. Southwest Surgery Center, LLC, 73 F.Supp.3d 961 (N.D. Ill.2014).

Ricco involved a claim for tortious interference with business expectancy under Illinois law. The plaintiff was terminated after a co-worker accused her of stealing a coat. She claimed that her co-worker falsely accused her “because he was angry about losing the 2013 March Madness pool and having to pay her….winnings.” The Judge allowed a jury to determine whether the co-worker’s motives were malicious.

2. The “Everybody’s Doing It” Defense. Jones v. Environmental Protection Agency, 524 Fed. Appx 598 (Fed. Cir. 2013).

In Jones, the plaintiff was terminated for engaging in an outside business during work hours and sending inappropriate e-mails. He argued that his termination was improper “because other EPA employees and supervisors misused government time and equipment by participating in an annual NCAA office basketball pool.” The Court of Civil Appeals for the Federal Circuit was not persuaded and affirmed the termination.

3. Winning Trumps Insensitivity. Leonard v. Eastern Ill. Univ, 614 F. Supp. 2d 918 (C.D. Ill. 2009).

In Leonard, the plaintiff was a Native American who complained about an interview where two interviewers wore shirts with the image of “Chief Illiniwek,” the mascot of the University of Illinois. In the course of finding no retaliation, the Court noted that at the time of the interview “the University of Illinois Fighting Illinois men’s basketball team was playing in the NCAA Tournament Sweet 16… [and] was the best Illinois basketball team since the 1989 Final Four Team.”

4. “The Tournament Made Me Late for Work”. Meinke v. VHS Genesis Labs, Inc., No. 05C 3952, 2006 WL 3409159 (N.D. Ill. Nov. 21, 2006).

In Meinke, the plaintiff was terminated from employment for, among other things, excessive absences. On one occasion when the plaintiff missed work, his supervisor called “his cellular phone on March 18, 2004, at approximately 1:30p.m., and told plaintiff to turn off the NCAA basketball tournament.” The plaintiff denied watching the NCAA tournament at that time.

Judge Acker Slightly Softens His Stance on “But For” Causation

March 14, 2016Robert C. Lockwood

Leave of Absence

About a month ago, I discussed a string of decisions issued by Senior United States District Court Judge William Acker. Judge Acker has taken the position that “but for” causation prohibits an employee from making alternative claims of retaliation under Title VII, or the ADA or the ADEA. In short, Judge Acker is making employees limit their retaliation claims to only one statute. Here is a link to my previous comment:Judge Acker Comment.

In a recent decision, Judge Acker slightly softened his stance on “but for” causation. See Kirkland v. Southern Company Svcs, No. 2:15-cv-1500-WMA (N.D. Ala. March 8, 2016). In Kirkland, Judge Acker dismissed an ADA retaliation claim based upon “but for” causation. Nevertheless, Judge Acker declined to dismiss an FMLA retaliation claim. Rather than issuing a definitive decision, Judge Acker found that the issue of “but for” causation in FMLA retaliation claims “is still a toss-up in the Eleventh Circuit.” Judge Acker made clear that he thinks “but for” causation should apply to FMLA retaliation claims, but he would refrain from dismissing such claims until the issue is definitively resolved by the Eleventh Circuit.

Can You Defame an Employee When You Respond to an EEOC Charge?

March 11, 2016June 29, 2016Robert C. Lockwood

If an employee files a charge of discrimination with the EEOC, his or her employer will be required to file a response to the allegations of the EEOC charge. I strongly encourage any reader of this blog to obtain legal counsel before responding to an EEOC charge. But, what if you or your lawyer says something false about an employee in your response to the EEOC charge? Could the employee then use that false statement to sue you for defamation?

On January 15, 2016, the Eleventh Circuit Court of Appeals (which reviews decisions from Alabama) issued a decision indicating that it would be very difficult for such a defamation claim to succeed. In Mack v. Delta Air Lines, Inc., No. 15-11945, 2016 WL 197162 (11th Cir. Jan 15, 2016), a lawyer submitted a response to the EEOC charge for Delta Air Lines. When the employee sued, she included a state-law claim for libel as part of her complaint, claiming that false statements in Delta’s EEOC response defamed her.

The Eleventh Circuit found that, under Georgia law, all filings in quasi-judicial proceedings are protected by absolute immunity and cannot be libelous. The court further found that the EEOC’s investigative process was a quasi-judicial proceeding. As a result, the court affirmed dismissal of the libel claim.

Obviously, the Mack case applies Georgia law. But, Alabama also grants absolute immunity to statements made in quasi-judicial proceedings. Sullivan v. Smith, 925 So.2d 972 (Ala. Civ. App. 2006). As a result, it would probably be difficult for an employee to succeed on a defamation claim arising from your response to an EEOC charge. In fact, at least one federal court in Alabama reached that conclusion before Mack was issued. See Hatfield v. Bio-Medical Apps. of Ala., 2012 WL 4478769 (M.D. Ala. Sep. 24, 2012).

EEOC Releases Guidance Expanding Scope of Retaliation.

February 12, 2016Robert C. Lockwood

On January 21, 2016, the EEOC issued a draft guidance expanding its interpretation of the law regarding retaliation claims. The EEOC claims that it needs to revise its guidance because of several Supreme Court decisions which were released after publication of its last retaliation guidance in 1998. While the EEOC’s enforcement guidance is supposed to be used only by EEOC investigative staff, courts and attorneys frequently cite the guidance as a source of authority. Unsurprisingly, the EEOC’s interpretation of the law is fairly liberal and employee-friendly. The EEOC’s draft guidance can be found here: EEOC Retaliation Guidance

One key example of the EEOC’s expansive interpretation is the burden placed on an employee to demonstrate that an employer’s stated reason for termination is pretextual — or unworthy of belief. Traditionally, the Eleventh Circuit (which reviews most retaliation claims originating in Alabama) requires an employee to address the employer’s reason for termination “head on.” If any employer says it terminated an employee for tardiness, the employee needs to show that he wasn’t tardy or that other employees were tardy and not fired. In contrast, the EEOC’s guidance indicates that it won’t require a “head on” analysis. Instead, the EEOC will allow an employee to demonstrate a “convincing mosaic” of other evidence to allow an “inference” of discriminatory intent.

The EEOC will accept public comments on its draft guidance until February 24, 2016. Comments can be made at www.regulations.gov in letter, email, or memoranda format. Alternatively, hard copies may be mailed to Public Input, EEOC, Executive Officer, 131 M Street, N.E., Washington, D.C. 20507.

JUDGE ACKER PROVIDES EMPLOYERS WITH A WEAPON AGAINST DISCRIMINATION CLAIMS

February 10, 2016Robert C. Lockwood

Senior United States District Court Judge William Acker is providing Alabama employers with a highly-effective weapon against employment discrimination complaints. In many cases, a terminated employee will be a member of multiple protected classes, for example race, age and disability. When they are terminated from employment, those employees may suspect that one or more of their protected traits were the reason for termination. As a result of that uncertainty, employers are often sued under multiple federal statutes: Title VII of the Civil Rights Act of 1964; the Age Discrimination in Employment Act; and, the Americans with Disabilities Act.

Judge Acker is putting an end to that practice. In a string of cases starting with Savage v. Secure First Credit Union, No. 2:14–cv–2468–WMA, –––F.Supp.3d ––––, 2015 WL 2169135 (N.D. Ala. May 8, 2015), Judge Acker is making employees choose exactly which employment law they are claiming has been violated. Judge Acker’s reasoning is based upon the fact that an employee in ADA, ADEA, and Title VII retaliation cases must prove that the protected characteristic was the “but for” cause of termination. In other words, the employee must prove that the characteristic was the only reason for termination.

As a result, Judge Acker finds that it is impossible for an employee to file a complaint claiming that he was fired in violation of the ADA or the ADEA or Title VII retaliation. Instead, he is making employees commit to one discrimination claim. If they refuse, he is dismissing their case in its entirety.

Notably, a Title VII claim for race, gender or religious discrimination does not require a “but for” causation analysis. Under Title VII, an employee can recover if his employer had “mixed motives” for termination. As a result, if race, gender or religion was merely part of the reason for termination, it is possible for an employee to win. I discussed this possibility in reviewing the case of a transgender auto mechanic who was terminated after sleeping in a customer’s car: LGBT Issues In the Workplace

Judge Acker’s decision in the Savage case is currently on appeal before the Eleventh Circuit Court of Appeals. Thus, it is possible that the Eleventh Circuit could find that he is wrong, and employees can be permitted to assert multiple claims, even under “but for” statutes.

EMERGING LGBT ISSUES IN THE WORKPLACE

February 1, 2016Robert C. Lockwood

The Eleventh Circuit Court of Appeals has released a decision which highlights the difficulties employers face in disciplining transgender employees. Chavez v. Credit Nation Auto Sales, LLC, No. 14-14596, 2016 WL 158820 (11th Cir. Jan. 14, 2016.). Chavez alleged that she was terminated from employment as a mechanic because she is a transgender person. Credit Nation responded that she was terminated because she slept for 40 minutes on-the-clock in a customer’s vehicle. The Court ruled that Credit Nation possessed a permissible reason for terminating Chavez, and affirmed dismissal of her claims for back pay and reinstatement. Nevertheless, the Court also found that Chavez presented sufficient evidence to show that her gender was a “motivating factor” in her termination, even though sleeping-on-the-job was a legitimate motivating factor as well. Chavez’s evidence of gender discrimination included: (1) the President of Credit Nation told Chavez that he was “very nervous” about her gender transition and the “possible ramifications”; (2) the President told Chavez that she was going to “negatively impact his business”; (3) the President asked Chavez not to wear a dress back and forth to work; (4) a Vice-President told Chavez to “tone it down” and be “very careful” because the President “didn’t like” the implications of Chavez’s gender transition; and, (5) Credit Nation deviated from its “normal” progressive discipline policy in terminating Chavez. The Eleventh Circuit remanded the case for a trial on whether Chavez’s transgender status was a motivating factor in the employment decision.

Chavez is the latest example of the difficult terrain that an employer must navigate when making decisions that affect Lesbian, Gay, Bisexual and Transgender employees. After Chavez, it is now well-established in the Eleventh Circuit (which reviews cases from Alabama) that sex discrimination under Title VII of the Civil Rights Act of 1964 includes discrimination against a transgender person for gender nonconformity. In short, as a general rule, transgender employees are protected by Title VII.

In contrast, the general rule is that sexual orientation (i.e., gay or bisexual) is not a protected characteristic under Title VII. Nevertheless, any lawyer will tell you that there are always exceptions to a general rule. For example, the Supreme Court has clearly held that same-sex sexual harassment is prohibited by Title VII. Additionally, there is some authority in the Eleventh Circuit indicating that discrimination on the basis of “nonconformity to gender stereotypes” might be actionable under Title VII. See Glenn v. Brumby, 663 F.3d 1312 (11th Cir. 2011), but see EEOC v. McPherson Companies, Inc., 914 F.Supp.2d 1234 (N.D. Ala. 2012)(finding there must be “obvious gender non-conformity”).

The federal government is attempting to insert itself into these uncertain waters. President Obama issued Executive Order 13672 which explicitly prevents federal contractors from discriminating on the basis of sexual orientation or gender identity. Additionally, the EEOC has taken the position that discrimination on the basis of sexual orientation is sex discrimination under Title VII.

In short, the law is in a state of flux with regard to LGBT issues. Proceed carefully before making employment decisions based upon LGBT status.

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