Retaliation Archives - Page 2 of 3

Alabama Retaliatory Discharge Claims Are Subject to Arbitration

May 24, 2017Robert C. Lockwood

Arbitration Retaliatory Discharge — The Alabama Supreme Court Required Arbitration of a Retaliatory Discharge Claim.

The Alabama Supreme Court loves arbitration. Arbitration is a private dispute resolution process. As part of an employment contract, an employer and employee can agree that any work-related dispute will be privately-resolved through arbitration, rather than through a law suit in court. In SSC Selma Operating Co. v. Fikes, No. 1160080, 2017 WL 2209884 (May 19, 2017), the Alabama Supreme Court required arbitration of a retaliatory discharge claim under Alabama law.

The Alabama Legislature has authorized several types of retaliatory discharge claims, but the most common claim arises from an allegation that an employer terminated an employee because that employee filed a claim under the Alabama Workers’ Compensation Act. See Ala. Code § 25-5-11.1. In Fikes, the employee claimed that she returned to work following an on-the-job injury and was fired by her employer. She sued for retaliatory discharge under Section 25-5-11.1.

But, the employee previously agreed to an Employment Dispute Resolution program, which required arbitration of all “employment related disputes,” except disputes that “relate[d] to worker’s compensation.” The employee argued that her retaliation claim “related to workers’ compensation,” and should not be arbitrated, because she was fired because of her workers’ compensation claim. Nevertheless, the Supreme Court disagreed. The Court found that the intent of the agreement was to require arbitration of “those employment-related disputes the [employee] would ordinarily be entitled to have resolved by a jury trial, i.e., disputes sounding in tort ….”

The Fikes case is another in a long line of recent cases from the Alabama Supreme Court requiring arbitration. Arguably, these decisions reflect a “strong federal policy favoring enforceability of arbitration contracts ….” Koullas v. Ramsey, 683 So.2d 415, 416 (Ala. 1996). Regardless of the reasons, if an employer enters into a valid arbitration agreement with an employee, the odds are substantial that Alabama’s courts will require arbitration of almost any employment-related claim.

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

March 2, 2017Robert C. Lockwood

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.

Discrimination: Sometimes, ignorance is a good excuse.

January 26, 2017January 26, 2017Robert C. Lockwood

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 decision–maker 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.

An Employer’s Demand That More Work Be Performed is Not Discriminatory

June 28, 2016Robert C. Lockwood

businessmen-42691_640

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.”

Mishandling Company Funds Is Grounds For Termination

May 4, 2016Robert C. Lockwood

Cash

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.

“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.

3 Alabama Laws That Provide Protection For Whistleblowers

March 28, 2016Robert C. Lockwood

Many employees like to complain about their work environment. In large part, Alabama law provides no protections to employees who complain about work conditions, because Alabama is an employment-at-will state. This means that, in the absence of an employment contract, employees can generally be fired for a good reason, a bad reason or no reason at all.

Nevertheless, Alabama provides at least three statutes which limit the ability of employers to terminate employees who make reports about work conditions:

Alabama Code Section 25-5-11.1 prevents employers from terminating employees who file written notices of safety violations.
Alabama Code Section 25-8-57 protects employees who oppose or report violations of Alabama’s Child Labor Laws.
Alabama Code Section 36-26A-3 prohibits adverse actions against a limited set of governmental employees who report wrongdoing by their supervisors.

While Alabama law provides very little protection for employees, there are numerous federal laws that do protect employees. Therefore, you should consult your attorney before disciplining an employee who complains about their work environment.

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.

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