The Eleventh Circuit Court of Appeals recently held that “[a]n employer’s demand that more work be done — even if unjustified — is not discriminatory.”  Schrock v. Publix Super Markets, Inc., No. 15-14631, 2016 WL 3425124 at *2 (11th Cir. Jun. 22, 2016).  Employers might be tempted to overreact:  “Great! I can load up my employees with huge amounts of work and it will never be discriminatory.”  Nevertheless, I suggest that employers should proceed cautiously.

Context is everything.  The Eleventh Circuit’s issued its holding when discussing a Title VII retaliation claim.  To successfully state a claim for retaliation, an employee must be opposing conduct by the employer which violates Title VII.  And, the employee must have a good faith, reasonable belief that the employer’s conduct violates Title VII.

In Schrock, the employee complained to her supervisors that she was being required to manage a bakery without sufficient time to do so.  When she was later terminated from employment, she claimed that her employer was retaliating for her complaints about being overworked.  She apparently never claimed that she was overworked because of her race, gender or other protected characteristic.  Therefore, she could not successfully pursue a retaliation claim, because a mere complaint about overwork is not protected by Title VII.

The employee in Schrock might have possessed a better claim if she complained:  “You are overworking me because I am African-American.”  But, Title VII will not provide an employee with protection for merely saying:  “You are working me too much.”

The Eleventh Circuit Court of Appeals recently recognized that repeated mishandling of company funds in a short time period is a legitimate basis for terminating an employee.  Chukes v. Sailormen, Inc., No. 15-12192, 2016 WL 1534071 (11th Cir. Apr. 15, 2016).

Chukes began work as an Assistant Manager for a Popeye’s restaurant franchise in September 2012.  By October 26, 2012, her restaurant’s safe was short on cash at least three occasions.  On that date, the franchise suspended Chukes and launched an investigation into the missing funds.  The supervisor conducting the investigation testified that he intended to convert the suspension to termination if the investigation determined that Chukes was responsible for the shortages.

The day after her suspension, October 27, 2012, Chukes claimed that another employee was terminated after rejecting sexual advances by a co-worker.  Thereafter, the supervisor conducting the investigation determined that Chukes was taking money from the safe, and Chukes’ employment was terminated.  Chukes sued for discrimination and retaliation under Title VII of the Civil Rights Act of 1964.  Those claims were dismissed in the United States District Court and the Eleventh Circuit affirmed dismissal.

Chukes tried to claim that her termination was discriminatory because funds were missing following the shift of another manager.  The Eleventh Circuit rejected that argument and relied upon the requirement that “the quantity and quality of the comparator’s misconduct be nearly identify to prevent courts from second-guessing employer’s reasonable decisions and confusing apples and oranges.”  The comparator had worked as a manager for years and money was only found missing once during his tenure.  In contrast, money was found missing three times during Chukes’s two-month employment period.

Federal courts regularly reject attempts by employees to compare their misconduct to that of other employees who are not terminated, because the comparator employees are not “nearly identical.”  Indeed, the “nearly identical” standard also played a role in a recent decision dismissing claims against Hyundai in Alabama: Eleventh Circuit Affirms Dismissal of Retaliation Claim Against Hyundai  Thus, the Chukes and Hyundai cases demonstrate the importance of implementing uniform standards of punishment for similar conduct by similar employees.

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.

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.