Retaliation A-Z: Legal Analysis and Practice Tip |
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40th ANNUAL PACIFIC COAST LABOR AND EMPLOYMENT LAW CONFERENCE
Debra S. Katz 1Katz, Marshall & Banks, LLP
Washington, D.C.
July 6, 2007
I. Retaliation Claims
Workplace retaliation claims - in which the plaintiff alleges that he or she was retaliated against for having exercised his or her rights under the anti-discrimination statutes - are an increasingly important component of employment discrimination litigation. Retaliation claims are comparable to, but distinct from, statutory discrimination and harassment claims.
A. Definition.
Section 704 of Title VII protects employees from retaliation for opposing discriminatory or harassing practices or for participating in an inquiry into discriminatory or harassing practices. The "opposition" clause makes it unlawful to discriminate against a person who "has opposed any practice made an unlawful employment practice by this subchapter," and the "participation" clause similarly makes it unlawful to discriminate against a person who "has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter." 42 U.S.C. § 2000e-3(a) (emphasis added).
The references to "this subchapter" means that this statute protects only those who have opposed or participated in any matter under Title VII; equivalent statutory protections are available under the Americans with Disabilities Act ("ADA"), the Age Discrimination in Employment Act ("ADEA"), and the Equal Pay Act ("EPA"), but not other anti-discrimination statutes, including Section 1981. Nonetheless, several federal courts have allowed plaintiffs to allege retaliation under Section 1981. See, e.g., Carney v. American Univ., 151 F.3d 1090, 1094-95 (D.C. Cir. 1998) (collecting cases); Hawkins v. 1115 Legal Serv. Care, 163 F.3d 684, 693 (2d Cir. 1998) (Section 1981 plaintiff must allege retaliation "in response to the claimant's assertion of rights that were protected by § 1981.")
Public employees may also be able to invoke the First Amendment, through a Section 1983 claim, 42 U.S.C. § 1983, to protect their workplace speech or conduct from retaliatory actions. Whistleblower statutes, state or federal, may provide yet another remedy for public or private employees. See generally E.S. Callahan & T.M. Dworkin, "The State of Whistleblower Protection," 38 Am. Bus. L.J. 99 (2000) (collecting state statutes and case law); S.M. Kohn, Concepts and Procedures in Whistleblower Law (2001) (collecting federal statutes and case law); R.G. Vaughn, "State Whistleblower Statutes and the Future of Whistleblower Protection," 51 Admin. L. Rev. 581 (1999). Detailed discussion of these topics is beyond the scope of this paper except for the Sarbanes Oxley Act of 2002, which is discussed in Part II. infra. Practitioners should determine their availability for any given plaintiff.
Most states have state anti-retaliation statutes, many of which are modeled after Title VII, and which may cover employees who are not covered by Title VII (such as those who work for employers with fewer than 15 employees). Two recent, high-profile cases from the Supreme Court of California illustrate the broad scope of some state statutes. Miller, involved discrimination, harassment, and retaliation claims brought by several female employees at a state prison who alleged that the warden engaged in sexual favoritism by promoting a co-worker who was also his mistress. The Court held it was not necessary for plaintiffs to "elaborate to their employer on the legal theory underlying the complaints they are making." Rather, all they had to do to state their retaliation claim was to show that they made a complaint "of sexual favoritism in the workplace," and suffered consequences as a result. Miller v. Dep't of Corrections, 36 Cal. 4th 446, 115 P.3d 77, 30 Cal. Rptr. 3d 797, 821 (2005); see also B. Egelko, "State High Court Rules on Sex with the Boss; 'Casting Couch' Way to the Top can be Deemed Harassment," San Francisco Chronicle, July 19, 2005 at B-1. More recently, in Yanowitz, which involved a sales manager for a cosmetics company who alleged that her employer took adverse actions against her after she repeatedly refused to comply with a supervisor's demands that she fire a dark-skinned female sales associate and replace her with "somebody hot," or "one who looks just like," a young, blond customer, the Court held that the plaintiff had set forth sufficient facts to survive summary judgment. Yanowitz v. L'Oreal USA, Inc., 36 Cal. 4th 1028, 116 P.3d 1123 (Cal. Aug. 11, 2005). The court further held that refusal to follow a supervisor's discriminatory directive can constitute protected activity under the state anti-retaliation statute, even if the employee does not tell the supervisor why she so refused. The Court further held that the plaintiff could use the continuing violation doctrine to show the totality of circumstances relating to the retaliatory actions. Id.; see also B. Egelko, "Woman's Suit Against L'Oreal to go to Trial; Court Rules Alleged Retaliatory Actions a Civil Rights Matter," San Francisco Chronicle, Aug. 12, 2005, at B-4; M. Dolan, "Court Widens Protections for Workers Sensing Bias," L.A. Times, Aug. 12, 2005.
Retaliation claims are an increasingly important component of litigation and EEOC charges. In fiscal year 1992, 15.3% of all charges filed with the EEOC included a retaliation claim; this increased to 29.8% of all charges in fiscal year 2006. See EEOC, "Charge Statistics Through FY 2006" (Feb 26, 2007) http://www.eeoc.gov/stats/charges.html.
In 1998, the EEOC issued a revised version of its Compliance Manual section on "Retaliation" which provides a useful overview of the EEOC's guidelines and analytical framework for investigating retaliation claims. See EEOC Compliance Manual, Section 8, Retaliation (May 20, 1998) http://www.eeoc.gov/policy/docs/retal.pdf. This Manual acknowledges, in several areas, that the EEOC disagrees with the current case law, or that the EEOC has adopted a position not taken by a majority of the courts. Thus, this Manual is, in part, a statement of what the EEOC believes the law should be.
The courts have recognized that a plaintiff can succeed on her retaliation claim, even if the underlying discrimination or harassment is found not to be actionable, so long as the plaintiff had a reasonable belief that she was engaged in protected conduct, or that the employer was engaged in illegal conduct:
An employee does not need to demonstrate that the action he protests is actually a violation of Title VII, instead he need only to have a good faith belief that his behavior is protected conduct. Moreover, in order to prevail on a retaliation claim, a plaintiff need not prove the merits of the underlying discrimination complaint. A verdict, therefore, can contain both a finding against a plaintiff on his Title VII claim, but for a plaintiff on his Title VII retaliation claim.
Bianchi v. Philadelphia, 183 F. Supp. 2d 726, 739 (E.D. Pa. 2002) (internal citations omitted); see also Evans v. Port Auth. of N.Y. & N.J., 192 F. Supp. 2d 247, 278 (S.D.N.Y. 2002) ("If anything, the evidence supporting a finding of retaliation is stronger than the evidence supporting a finding of discrimination because the jury need not take the logical step from plaintiff's [protected conduct] to his race.").
The Tenth Circuit addressed the question of "whether a plaintiff may maintain a retaliation claim based on a subjective good-faith belief that the challenged conduct violated Title VII." Crumpacker v. Kansas Dep't of Human Resources, 338 F.3d 1163, 1171 (10th Cir. 2003). The Tenth Circuit noted that several prior circuit cases had allowed such claims, but the Supreme Court's intervening decision in Clark County Sch. Dist. v. Breeden 532 U.S. 268 (2001) (per curiam), had rejected that approach, to the extent that it was based on a plaintiff's unreasonable belief. "The Supreme Court, however, recently rejected by implication any interpretation of Title VII that would permit plaintiffs to maintain retaliation claims based on an unreasonable good-faith belief that the underlying conduct violated Title VII." Crumpacker, 338 F.3d at 1171 (citing Clark County, 532 U.S. at 269). Thus, "the Supreme Court's decision in Clark supercedes and overrules this court's prior decisions, to the extent they interpreted Title VII as permitting retaliation claims based on an unreasonable good-faith belief that the underlying conduct violated Title VII." Id. However, a reasonable good-faith belief remains protected under the anti-retaliation statute. "By permitting plaintiffs to maintain retaliation claims based on a reasonable good-faith belief that the underlying conduct violated Title VII, employees are able to report what they reasonably believe is discriminatory conduct without fear of reprisal. Strong policy supports allowing plaintiffs to maintain such claims." Id. at 1172.
Recently, the Fourth Circuit further expounded upon what constitutes a reasonable good faith belief regarding the underlying conduct in a retaliation claim. In Jordan v. Alternative Resources Corp., 458 F.3d 332 (4th Cir. 2006), plaintiff heard a coworker, who was watching television exclaim "they should put those two black monkeys in a cage with a bunch of black apes and the let the apes f-k them." Id. The coworker was speaking to the television set in response to a report about the D.C. snipers. Id. at 336. Plaintiff complained about the coworker's comments to various supervisors and alleges that he was retaliated against after having complained. Id. at 337. Relying on the holding in EEOC v. Navy Federal Credit Union, 424 F.3d 397, 406 (4th Cir. 2005), which established the objective-reasonableness inquiry, the court held that an employee could not have reasonably believed that the conduct he complained about - a racially hostile work environment - violated Title VII when such conduct was isolated, not directed at him and there was no suggestion of any plan in motion to create a hostile work environment or that a hostile work environment was likely to occur as a result of one co-worker's singular racist comment. Jordan, 458 F.3d at 340-341. Denying the plaintiff's petition for rehearing en banc, the Fourth Circuit summarily affirmed its prior holding which maintained that "as the law stands, Title VII does not create a claim for every employee who complains about the potential for Title VII violations or about other employees' isolated racial slurs." Jordan v. Alternative Resources Corp., 467 F.3d 478 2006 WL 2925641 at *3 (4th Cir. October 13, 2006). The court reasoned that despite an employee's contention that a single isolated incident might eventually lead to a Title VII violation, the law does not protect employees in connection with their complaints about potential or future violations. Id. at *2. Therefore, an employee's retaliation claim should be based on an "objectively reasonable belief that a violation is actually occurring based on circumstances that the employee observes and reasonably believes." Jordan, 458 F.3d at 341. On April 16, 2007, the Supreme Court denied certiorari. Jordan, No. 061086, 2007 WL 407765 (April 16, 2007).
Title VII discrimination and harassment claims can be based on a "mixed motive" element allowing the plaintiff to recover when she "demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice." 42 U.S.C. § 2000e-2(m). However, the federal appellate courts have consistently held that this statutory "mixed motive" element is not available for Title VII retaliation claims, since the statute does not include retaliation for engaging in protected conduct in its listing of five categories of protected status. See Pennington v. City of Huntsville, 261 F.3d 1262, 1269 (11th Cir. 2001); Matima v. Celli, 228 F.3d 68, 81 (2d Cir. 2000); Kubicko v. Ogden Logistics Servs., 181 F.3d 544, 552 n.7 (4th Cir. 1999); McNutt v. Board of Trustees of the Univ. of Ill., 141 F.3d 706, 707-09 (7th Cir. 1998); Woodson v. Scott Paper Co., 109 F.3d 913, 932-36 (3d Cir. 1997); Tanca v. Nordberg, 98 F.3d 680, 682-85 (1st Cir. 1996). The Fifth and D.C. Circuits have refrained from deciding this question. Rubinstein v. Administrators of the Tulane Educ. Fund, 218 F.3d 392, 403 (5th Cir. 2000); Borgo v. Goldin, 204 F.3d 252, 255 n.6 (D.C. Cir. 2000); see also Porter v. Natsios, 414 F.3d 13, 19 (D.C. Cir. 2005) (citing Borgo).
Against this backdrop, the impact of the Supreme Court's decision in Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003), remains unclear. In Desert Palace, the Court held that direct evidence of unlawful motivation is not required to proceed under a mixed-motive theory. Id. at 101. The Court based its decision largely on the language of § 2000e-2(m), which would suggest that its holding applied only to the discrimination claims within the section's orbit. Yet at least one court has held that because of Desert Palace, the mixed-motive scheme of § 2000e-2(m) applies to retaliation claims as well. See Warren v. Terex Corp., 328 F. Supp. 2d 641, 646 (N.D. Miss. 2004). But see Funai v. Brownlee, 369 F. Supp. 2d 1222, 1228 (D. Haw. 2004) (holding that Desert Palace does not apply to retaliation claims and applying Price Waterhouse defense).
It seems likely, however, that employers will continue to have a full mixed-motive defense under Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) for retaliation claims. The D.C. Circuit explained the consequences of this defense:
Where, on the other hand, the plaintiff argues that the [retaliatory] action resulted from mixed motives, a slightly different model operates. A plaintiff asserting mixed motives must persuade the trier of fact by a preponderance of the evidence that unlawful retaliation constituted a substantial factor in the defendant's action. Price Waterhouse, 490 U.S. at 276 (O'Connor, J., concurring); id. at 259 (White, J., concurring). When the plaintiff successfully shows that an unlawful motive was a substantial factor in the employer's action, the defendant may seek to prove in response that it would have taken the contested action even absent the discriminatory motive. See id. at 244-45 (Brennan, J.). If the defendant fails to persuade the trier of fact by a preponderance of the evidence that it would have taken the action even absent the discriminatory motive, the plaintiff will prevail. See id. at 276 (O'Connor, J., concurring).
This burden on a defendant in a mixed-motives case has been characterized both as an affirmative defense, id. at 246 (Brennan, J.) and as a shifting burden of persuasion, id. at 274 (O'Connor, J., concurring). The question of characterization is "semantic," and need not be definitively resolved. See id. at 259 (White, J., concurring). What is noteworthy, however, is that under Price Waterhouse a defendant who is guilty of acting pursuant to an unlawful motive may nonetheless escape liability by proving that it would have made the same decision in the absence of the unlawful motivation. In short, the ultimate burden of persuasion as to the facts constituting the defense properly falls on the defendant in a mixed-motives case, because the plaintiff has proven that unlawful motivation constituted a substantial factor in the defendant's action.
Thomas v. National Football League Players Ass'n, 131 F.3d 198, 202-03 (D.C. Cir. 1997) vacated on other grounds, 1998 WL 988451 (C.A.D.C. Feb. 25, 1998); see also Rose v. New York City Bd. of Educ., 257 F.3d 156, 161-62 (2d Cir. 2001); Kubicko, 181 F.3d at 552-53 & n.8 (collecting cases).
B. Elements of the Claim: Direct Evidence Framework.
If the employee has direct evidence of retaliation, then the McDonnell Douglas burden shifting framework does not apply. Direct evidence of discrimination usually involves oral or written statements that the employer engaged in adverse action against he employee because the employee engaged in protected activity. See, e.g., Bergene v. Salt River Project Agric. Improvement & Power Dist., 272 F.3d 1136, 1141 (9th Cir. 2001) (finding direct evidence of retaliatory intent where supervisor threatened employee with "revenge" if she held out for too much money on her discrimination clam.) As the Seventh Circuit concisely explained, summary judgment should be denied if the employee has direct evidence of retaliation, unless the employer can show, by unrebutted evidence, that it would have made the same adverse employment decision even without a retaliatory motive:
The plaintiff in a retaliation case should have two (and only two) distinct routes to obtaining/preventing summary judgment. One, the more straightforward, the one that is unrelated to McDonnell Douglas, is to present direct evidence (evidence that establishes without resort to inferences from circumstantial evidence) that he engaged in protected activity (filing a charge of discrimination) and as a result suffered the adverse employment action of which he complains. If the evidence is uncontradicted, the plaintiff is entitled to summary judgment. If it is contradicted, the case must be tried unless the defendant presents unrebutted evidence that he would have taken the adverse employment action against the plaintiff even if he had had no retaliatory motive; in that event the defendant is entitled to summary judgment because he has shown that the plaintiff wasn't harmed by retaliation.
Stone v. City of Indianapolis Public Utilities Div., 281 F.3d 640, 644 (7th Cir. 2004). If the plaintiff does not have direct evidence of retaliation, courts should apply the McDonnell Douglas burden shifting framework, as discussed in the next section.
C. Elements of the Claim: Burden-Shifting Framework.
Retaliation claims are typically brought under the McDonnell Douglas burden shifting framework; thus, there are three components to the case. First, the plaintiff must prove her prima facie retaliation claim. Second, the burden then shifts to the defendant to provide a "legitimate, nondiscriminatory reason" for the action(s) taken. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Third, if the defendant has satisfied its burden of production, then the plaintiff must be "afforded a fair opportunity" to show that the defendant's proffered reason is pretextual. Id. at 804.
The Supreme Court clarified the level of proof required at each stage and the consequences for a party's failure to satisfy its burden, while keeping the tripartite framework. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 509-19 (1993); Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253-56 (1981). Under Hicks, if the plaintiff makes a prima facie case, then defendant's burden is not discharged unless the defendant "introduces evidence which, taken as true, would permit the conclusion that there was a nondiscriminatory reason for the adverse action." Hicks, 509 U.S. at 509 (emphasis in original). If the defendant meets its burden, then the trier of fact proceeds to the ultimate question -- instead of going through the third McDonnell Douglas step -- and decides whether to reject defendant's proffered reasons. Id. at 511. If the trier of fact rejects these reasons, then the ultimate burden of persuasion remains with the plaintiff. Id. Alternatively, if the defendant fails to rebut plaintiff's prima facie case, then "the court must award judgment to the plaintiff as a matter of law." Id. at 509.
Courts have consistently recognized three elements to plaintiff's prima facie retaliation claim: "(1) opposition to discrimination or participation in covered proceedings; (2) adverse action; (3) causal connection between the protected activity and the adverse action." See EEOC Compliance Manual, Section 8, at 3. The exact wording used by the various circuits differs somewhat. The Sixth Circuit requires four elements, although its additional element (defendant's knowledge) is inherent in the "causal connection" element of the traditional three-element test. The following cases represent recent statements of the circuit courts for retaliation under Title VII.
District of Columbia Circuit. The plaintiff "must show that (1) she engaged in statutorily protected activity; (2) her employer took an adverse personnel action against her; and (3) a causal connection exists between the two." Carney v. American Univ., 151 F.3d 1090, 1095 (D.C. Cir. 1998); see also Broderick v. Donaldson, 338 F. Supp. 2d 30, 38 (D.D.C. 2004).
First Circuit. The plaintiff "must demonstrate that (1) he engaged in protected conduct under Title VII; (2) he suffered an adverse employment action; and (3) the adverse action is causally connected to the protected activity." Hernández-Torres v. Intercontinental Trading, Inc., 158 F.3d 43, 47 (1st Cir. 1998); see also Higgins v. TJX Cos., Inc., 331 F. Supp. 2d 3, 6 (D. Me. 2004).
Second Circuit. The plaintiff "must show (1) participation in a protected activity known to the defendant; (2) an employment action disadvantaging the plaintiff; and (3) a causal connection between the protected activity and the adverse employment action." Quinn v. Green Tree Credit Corp., 159 F.3d 759, 769 (2d Cir. 1998); see also Olle v. Columbia Univ., 332 F. Supp. 2d 599, 619 (S.D.N.Y. 2004).
Third Circuit. The plaintiff "must show that: (1) he or she engaged in a protected employee activity; (2) the employer took an adverse employment action after or contemporaneous with the protected activity; and (3) a causal link exists between the protected activity and the adverse action." Weston v. Pennsylvania, 251 F.3d 420, 430 (3d Cir. 2001); Meyer v. Nicolson, --- F. Supp. 2d ---, 2006 WL 2087514 (W.D. Pa. July 26, 2006).
Fourth Circuit. The plaintiff must prove "that (1) plaintiff engaged in a protected activity, such as filing an EEO complaint; (2) the employer took adverse employment action against plaintiff; and (3) a causal connection existed between the protected activity and the adverse action." Causey v. Balog, 162 F.3d 795, 803 (4th Cir. 1998); see also Anderson v. G.D.C, Inc., 281 F.3d 452, 458 (4th Cir. 2002); Schamann v. O'Keefe, 314 F. Supp. 2d 515, 528 (D. Md. 2004).
Fifth Circuit. The plaintiff "must show that: (1) he engaged in an activity protected by Title VII; (2) he was subjected to an adverse employment action; and (3) a causal link exists between the protected activity and the adverse employment action." Davis v. Dallas Area Rapid Transit, 383 F.3d 309, 319 (5th Cir. 2004).
Sixth Circuit. This circuit requires four elements, with the additional element (defendant's knowledge) interposed between the first and second elements of the traditional three-element test. The plaintiff "must show that: (1) he engaged in activity protected by Title VII; (2) this exercise of protected rights was known to defendant; (3) defendant thereafter took adverse employment action; and (4) there was a causal connection between the protected activity and the adverse employment action." Hafford v. Seidner, 183 F.3d 506, 515 (6th Cir. 1999); accord Allen v. Michigan Dep't of Corrections, 165 F.3d 405, 412 (6th Cir. 1999); see also Bukta v. J.C. Penny Co., Inc., 359 F. Supp. 2d 649, 671 (N.D. Ohio 2004). Since the discussion in this chapter is based on the three-element test, practitioners in the Sixth Circuit should refer to these two cases, and the earlier cases cited therein, for guidance on interpreting the unique aspects of the Sixth Circuit's retaliation test.
Seventh Circuit. The Seventh Circuit reformulated its framework for retaliation cases based on indirect evidence by requiring a "similarly situated" analysis, which requires the plaintiff to show that after engaging in protected conduct, "only he, and not any similarly situated employee who did not file a charge [or other protected conduct], was subjected to an adverse employment action even though he was performing his job in a satisfactory manner." Stone, 281 F.3d at 644; Sylvester v. SOS Children's Villages Illinois, Inc., 453 F.3d 900, 902 (7th Cir. 2006). The court explained that "If the defendant presents no evidence in response, the plaintiff is entitled to summary judgment. If the defendant presents unrebutted evidence of a noninvidious reason for the adverse action, he is entitled to summary judgment. Otherwise there must be a trial." Id.
Eighth Circuit. The plaintiff "must show that (1) she engaged in statutorily protected conduct; (2) suffered an adverse employment action; and (3) there is a causal connection between her protected conduct and the adverse employment action." Zhuang v. Datacard Corp., 414 F.3d 849, 856 (8th Cir. 2005).
Ninth Circuit. The plaintiff "must show that: (1) he or she engaged in a protected activity; (2) suffered an adverse employment action; and (3) there was a causal link between the two." Pardi v. Kaiser Found. Hospitals, 389 F.3d 840, 849 (9th Cir. 2004); Steiner v. Showboat Operating Company, 25 F.3d 1459, 1464 (9th Cir. 1994); Gribben v. United Parcel Serv., Inc., Slip Copy, 2006 WL 616645 *4 (D. Ariz. Mar. 8, 2006).
Tenth Circuit. The plaintiff "must show: (1) she engaged in protected activity; (2) she suffered an adverse employment action; and (3) there was a causal connection between the protected activity and the adverse action." Duncan v. Manager, Dep't of Safety, 397 F.3d 1300, 1314 (10th Cir. 2005); see also Medlock v. Ortho Biotech Inc., 164 F.3d 545, 549-550 (10th Cir. 1999) (using direct evidence method instead of burden-shifting framework).
Eleventh Circuit. The plaintiff "must show that (1) she engaged in protected activity, (2) she suffered an adverse employment action, and (3) there was a causal link between the protected activity and the adverse employment action." Stavropoulos v. Firestone, 361 F.3d 610, 616 (11th Cir. 2004).
1. Protected Activity
The EEOC has provided four generic examples of opposition activity, all of which must be read, pursuant to the statute, as involving unlawful discrimination: (1) "threatening to file a charge or other formal complaint alleging discrimination;" (2) "complaining to anyone about alleged discrimination against oneself or others;" (3) "refusing to obey an order because of a reasonable belief that it is discriminatory;" and (4) "requesting reasonable accommodation or religious accommodation." See EEOC Compliance Manual, Section 8, at 4-6. The fourth provision does not apply to racial or sexual harassment plaintiffs, although some may also have a claim related to their religion or disability.
Participation activity essentially tracks the statutory definition, i.e., having "made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under [Title VII]." 42 U.S.C. § 2000e-3(a).
The retaliation cases referenced below provide the following non-exhaustive examples of what the courts have considered to be protected activity:
(1) Plaintiff "complained to [] management about what she believed constituted discriminatory practices" and was fired "after she failed to appear for the [in-house] deposition concerning [another plaintiff's] employment at Cort Furniture." Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1085 (3d Cir. 1996).
(2) Plaintiff filed "various grievances against [defendant]" with the EEOC and the Michigan Civil Rights Commission. Allen, 165 F.3d at 412.
(3) Plaintiff filed two EEOC charges alleging discrimination. Berman v. Orkin Exterminating Co., 160 F.3d 697, 702 (11th Cir. 1998).
(4) Plaintiff's letter to outside investigators "purports to complain of racism, sexism, and retaliation." Douglas v. DynMcDermott Petroleum Operations Co., 144 F.3d 364, 373 (5th Cir. 1998).
(5) Plaintiff filed a complaint with the New York Department of Human Rights. Quinn, 159 F.3d at 769.
(6) Plaintiff was terminated one month after his deposition in his Title VII case; defendants' termination letter stated that their decision was "a result of issues raised in your deposition." Medlock, 164 F.3d at 550.
(7) Plaintiff informed defendant by letter that she intended "to file suit" regarding her discrimination claims. Carney, 151 F.3d at 1095; see also Jones v. Washington Metro. Area Transit Auth., 205 F.3d 428, 433 (D.C. Cir. 2000) (supervisor retaliated against plaintiff "for protected activity, namely the 1985 letter . . . complaining of Department discrimination"); Ferguson v. Small, 225 F. Supp. 2d 31, 38 (D.D.C. 2002) ("Accordingly, the Court finds that the [plaintiff's attorney's] letter to defendant's General Counsel constituted protected activity.").
(8) Plaintiff complained to supervisors and to corporate headquarters about racial harassment. Roberts v. Roadway Express, Inc., 149 F.3d 1098, 1103 (10th Cir. 1998); See also, Fields v. Riverside Cement Co., Slip Copy, 2007 WL 900983 (9th Cir. 2007) (plaintiff engaged in protected activity by informing his supervisors that he was planning to file a racial harassment complaint the EEOC and by complaining about racial harassment and discrimination to his supervisors).
(9) Plaintiff provided information to the employer during its internal investigation of another employee's sexual harassment charge. Clover v. Total Sys. Servs., Inc., 176 F.3d 1346, 1353 (11th Cir. 1999).
(10) Plaintiff conducted investigation of sexual harassment claim against the head of his employee's union, who then retaliated by denying him a promotion. McMenemy v. Rochester, N.Y., 241 F.3d 279, 284-85 (2d Cir. 2001).
(11) Plaintiff actively participated in an internal diversity program "aimed at promoting the hiring of people of color and fostering relationships with minority firms," after which his supervisors increasingly criticized his work, downgraded his evaluations, and transferred him to another project. Garrett v. Hewlett-Packard Co., 305 F.3d 1210, 1214, 1220-21 (10th Cir. 2002).
Although defendants may argue that participation in an employer's internal investigation pursuant to an EEOC charge should not be treated as protected activity, the Eleventh Circuit rejected that argument:
Here, we recognize that, at least where an employer conducts its investigation in response to a notice of charge of discrimination, and is thus aware that the evidence gathered in that inquiry will be considered by the EEOC as part of its investigation, the employee's participation is participation "in any manner" in the EEOC investigation. Accordingly, by participating in her employer's investigation conducted in response to an EEOC notice of charge of discrimination, Clover engaged in statutorily protected conduct under the participation clause. Clover, 176 F.3d at 1353.
The district courts are split as to whether resisting a supervisor's sexual advances constitutes protected activity, although a majority of the courts that have ruled on this issue "have held that an employee's refusal to submit to sexual advances constitutes protected activity." Little v. National Broadcasting Co., 210 F. Supp. 2d 330, 385-86 (S.D.N.Y. 2002) (collecting cases). The Second, Third and Seventh Circuit have all noted the existence of this issue but did not rule upon it. Id. at 385 (collecting cases). In Little, the district court held that "rejecting sexual advances from an employer does constitute protected activity," on the grounds that "sexual harassment by an employer or supervisor is an unlawful practice, and an employee's refusal is a means of opposing such unlawful conduct." Id. at 386.
Protected opposition to unlawful discrimination may come in the form of protests, including informal expressions of one's views through an established grievance procedure, employer-wide meetings, etc. But the clause does not protect insubordinate or non-productive behavior. Matima v. Celli, 228 F.3d 68, 78-79 (2d Cir. 2000) ("The law protects employees in the filing of formal charges of discrimination as well as in the making of informal protests of discrimination . . . . But not all forms of protest are protected . . . . For instance, Title VII does not constitute a license for employees to engage in physical violence in order to protest discrimination."). Thus, federal appellate courts have held "that disruptive or unreasonable protests against discrimination are not protected activity under Title VII and therefore cannot support a retaliation claim." Id. at 79 (collecting cases).
Nor does the clause protect employees who assist their employer during a Title VII investigation, when the employee alleges that he is subsequently retaliated against by his supervisors for having taken the employer's side against the employee. Twisdale v. Snow, 325 F.3d 950, 952 (7th Cir. 2003) (Title VII's retaliation provision is "for the protection of the discriminated against, and not their opponents."). In Twisdale, the plaintiff's supervisors were upset that the plaintiff had not sided with the employee who complained of discrimination.
In contrast, the alleged harasser may be protected under the participation clause, if the harassed employee is able to elicit deposition or trial testimony from the harasser that corroborates her claims, and the employer then retaliates against the harasser solely because of his testimony which increased the employer's liability. Merritt v. Dillard Paper Co., 120 F.3d 1181 (11th Cir. 1997). This latter scenario may be less problematic for the employer, since the employer can still fire the accused harasser for his conduct, independent of the harasser's testimony. Id. at 1191 ("Dillard could have fired Merritt after he gave his deposition testimony, as well, so long as it did not fire him because he 'testified, assisted, or participated in any manner' in a Title VII investigation or proceeding."). Further, the employer may be able to invoke the mixed-motives defense, which would preclude the fired harasser from obtaining monetary damages (other than attorney's fees) or reinstatement. 42 U.S.C. § 2000e-5(g)(2)(B).
It is not necessary that the employee actually prove that the harassment or discrimination complained about was unlawful: "She need only demonstrate that she had a good faith, reasonable belief that the underlying challenged actions of the employer violated the law." Quinn, 159 F.3d at 769 (internal quotation marks omitted); accord Turner v. National R.R. Passenger Corp., 181 F. Supp. 2d 122, 134 (N.D.N.Y. 2002); Freitag v. Ayers, 468 F.3d 528, 542 (9th Cir. 2006). The court in Freitag held that a female corrections officer engaged in protected activity by opposing and reporting sexual harassment by inmates to prison administrators. Id. The court held that the officer's reasonable belief that the conduct was unlawful and the employer's knowledge of her complaints were the determinative factors and that the administrator's belief that the conduct did not violate Title VII was irrelevant. Id. If a plaintiff complains that the employer failed to give her a promotion and pay increase, but does not attribute that failure to gender or other status-based discrimination, then the plaintiff was not engaged in protected activity. Hunt v. Nebraska Public Power Dist., 282 F.3d 1021, 1028-29 (8th Cir. 2002).
In Turner v. Baylor Richardson Medical Health Center, 476 F.3d 337, 348-49 (5th Cir. 2007), the Fifth Circuit found that an African American employee's complaints to a supervisor requesting that the supervisor refrain from making racial comments and employee's notification to the supervisor's superiors of their deteriorating working relationship were not protected activities. Id.
The Fifth Circuit has recently held in DeHart v. Baker Hughes Oilfield Operations, Inc., 2007 WL 126081, *3 (5th Cir. Jan. 19, 2007) that, although other courts and the EEOC do not require personal participation, a plaintiff in this Circuit must participate in a protected activity and cannot claim protection through close association with another's protected activity. Id.
In Green v. Franklin Nat'l Bank of Minneapolis, 459 F.3d 903, 914 (8th Cir. 2006), the Eighth Circuit held that a terminated bank teller engaged in protected activities by complaining to various supervisors of racial harassment. The Court distinguished an earlier decision and found that a plaintiff need only report an alleged wrongful activity and that plaintiff need not also report a failure of the employer to take proper remedial action. Id.
The Eleventh Circuit Court found that a police department employee's investigation of an EEOC sex discrimination claim made by an officer was an informal method of conciliation, not an "investigation," and therefore not a protected activity sufficient to support a prima facie case of retaliation when he was later terminated. See Crawford v. City of Fairburn, Georgia, 2007 WL 519061, *4 (11th Cir. Feb. 21, 2007), vacated on other grounds, 2007 WL 926052 (11th Cir. March 29, 2007) (finding that officer failed to show city's non-discriminatory reasons for termination were pretext).
The Fifth Circuit has recognized an important limitation by holding that the protected activity must itself constitute lawful conduct; "any betrayal of a client's confidences that breaches the ethical duties of the attorney places that conduct outside Title VII's protections." Douglas, 144 F.3d at 376 (plaintiff, an attorney, violated Louisiana State Bar Rules of Professional Conduct by her unauthorized disclosure of confidential information about her employer to third party). But see Willy v. Administrative Review Board, 423 F.3d 483, 500 (5th Cir. 2005) (rejecting as a matter of federal common law that the "attorney-client privilege is a per se bar to retaliation claims under federal whistleblower statutes").
The state courts are split as to whether in-house counsel can reveal client confidences to her attorney in order to prove a wrongful discharge or other discrimination claim. Courts from Connecticut, Montana, Utah, and Tennessee have recently held that attorneys can reveal client confidences in such circumstances, contrary to an older decision from Illinois. Compare Meadows v. KinderCare Learning Centers, Inc., No. Civ. 03-1647-HU, 2004 WL 2203299, at *2-*4 (D. Or. Sept. 29, 2004) (in-house counsel could bring state wrongful discharge claims based on refusal to implement discriminatory employment practices, but did not state Title VII retaliation claims) and Spratley v. State Farm Mut. Auto. Ins. Co. 78 P.3d 603, 610 (Utah 2003) (in-house counsel "may, consistent with their duties under the Rules of Professional Conduct, disclose matters relating to their representation of State Farm in a suit against State Farm, so long as those disclosures are reasonably necessary to that claim.") and O'Brien v. Stolt-Nielsen Transp. Group, Ltd., 838 A.2d 1076, 1080-82 (Conn. Super. Ct. 2003) (collecting cases) and Crews v. Buckman Laboratories Int'l, Inc., 78 S.W.3d 852 (Tenn. 2002) (allowing plaintiff to bring wrongful discharge claim based on her refusal to violate her ethical obligations) and Burkhart v. Semitool, Inc., 300 Mont. 480, 5 P.3d 1031 (Mont. 2000) (plaintiff can reveal confidential attorney-client information to establish her employment discrimination claim) with Balla v. Gambro, Inc., 145 Ill. 2d 492, 584 N.E.2d. 104 (Ill. 1991) (in-house counsel cannot bring action for retaliatory discharge).
A recent Maryland decision explained the contrary approach of the Illinois courts as turning on the fact that in Maryland (and some other states), Rule 1.6, Md. Rules Prof. Conduct, allows an attorney to reveal confidential information "to the extent the lawyer reasonably believes necessary ... to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client." Hoffman v. Baltimore Police Dep't, 379 F. Supp. 2d 778, 782 (D. Md. 2005). In Hoffman, the court also found that the employer had waived the attorney-client privilege as to numerous documents that the employer had submitted to the EEOC as part of its response to the employee's charge of discrimination. Id. at 784-85.
An intermediate appellate court in Florida held that an in-house counsel's attorney in a whistleblower suit could not be disqualified on the basis that the client made reasonably necessary disclosures to her attorney to help prove her claims. Alexander v. Tandem Staffing Solutions, Inc., 881 So.2d 607, 21 IER Cases 1148 (Fla. Dist. Ct. App. 2004), reh'g den., Sept. 22, 2004; ccord Fox Searchlight Pictures, Inc. v. Paladino, 89 Cal. App. 4th 294, 310-11, 106 Cal. Rptr. 2d 906, 920 (Cal. Ct. App. 2001).
The American Bar Association has explored this issue and concluded that in some circumstances, in-house counsel can bring a wrongful discharge claim. See American Bar Ass'n, Formal Ethics Opinion 01-424, "A Former In-House Lawyer may Pursue a Wrongful Discharge Claim Against her Former Employer and Client as long as Client Information Properly Is Protected" (Sept. 22, 2001) (collecting cases); see generally B. Marshall, "In Search of Clarity: When Should In-House Counsel Have the Right to Sue For Retaliatory Discharge?," 14 Geo. J. Legal Ethics 871 (2001) (same). The California legislature passed a government attorney whistleblower bill that "would authorize an attorney who learns of improper governmental activity, as defined, in the course of representing a governmental organization to urge reconsideration of the matter and to refer it to a higher authority in the organization." Assembly Bill 363 (Aug. 28, 2002). However, Governor Gray Davis vetoed this bill on the grounds that it would have interfered with the need for candor and confidentiality in the attorney-client relationship. See "California Governor Unexpectedly Vetoes Government Attorney Whistleblower Bill," 71 U.S.L.W. 2243 (Oct. 15, 2002).
Thus, practitioners who are faced with this situation will need to ascertain the applicable case law and state ethical rules and opinions, bearing in mind that not all states have addressed this issue. See also R. Adams & D. S. Katz, "Lawyers Who 'Tell' Risk All," Nat'l L.J., Mar. 29, 2004, at 22; J. Gibeaut, "Telling Secrets: When In-House Lawyers Sue Their Employers, They Find Themselves in the Middle of the Debate on Client Confidentiality," ABA J., Nov. 2004, at 38-44, 73; M. Lyons & P.F. Butcher, "Too Many Loyalties," Legal Times, Apr. 19, 2004, at 49; S. Reisinger, "Every Lawyer's Nightmare," Legal Times, Oct. 20, 2003, at 25.
a. § 1981 Retaliation Claims.
By passing the Civil Rights Act of 1991 ("1991 Act"), Pub.L. No. 102-166, 105 Stat. 1071, Congress expanded the definition of the phrase "make and enforce contracts" for § 1981 claims. Since this new subsection was created, the majority of federal circuits that have addressed the issue have held that § 1981 retaliation claims are actionable. See, e.g., Humphries v. CBOCS West, Inc. (7th Cir. Jan. 10, 2007) (retaliation actionable under Section 1981); Welzel v. Bernstein, 436 F. Supp. 2d 110, 117-18 (D.D.C. 2006), Hawkins v. 1115 Legal Service Care, 163 F.3d 684, 693 (2d Cir. 1998); Andrews v. Lakeshore Rehabilitation Hosp., 140 F.3d 1405, 1412-13 (11th Cir.1998); Carney v. American Univ., 151 F.3d 1090, 1094-95 (D.C.Cir.1998) (assuming without deciding that a retaliation claim is cognizable under § 1981). The 1991 Act's legislative history is "replete with expressions of Congress's intent to broaden section 1981 specifically to cover race-based retaliation in all phases of contractual relations." ndrews, 140 F.3d at 1412-13. The McDonnell Douglas burden-shifting framework applies equally to Title VII and § 1981 claims, and, thus, the particular elements of a § 1981 retaliation claim are that plaintiff (1) was engaged in a statutorily protected activity, (2) plaintiff''s employer took an adverse personnel action against her and (3) a causal connection existed between the two. See Glymph v. District of Columbia, 211 F. Supp. 2d 152, 154 (D.D.C. 2002); Carney, 151 F.3d at 1092-93, 1095. Any § 1981 claim, including retaliation claims, must contain some race-based connection, but courts have held that membership in a protected class is not an element of a prima facie retaliation claim. See, e.g., Glymph, 211 F. Supp. at 154 (holding that a former white employee, who complained about race discrimination within the company, was not required to allege membership in protected class to state § 1981 retaliation claim). The race-based element must lie in the protected activity, not in the race of the plaintiff. Id.; see also Farmer v. Lowe's Companies, Inc., 188 F. Supp. 2d 612, 618 (W.D.N.C. 2001) (holding that a female director's complaints that women and racial minorities were under represented at corporation and that corporation engaged in discrimination were "protected activity" under § 1981) Furthermore, a successful § 1981 retaliation claim requires that the activity in question involve vindication of contractual equality. See Welzel, 436 F.Supp.2d at 118 (holding that plaintiff admonishing an executive for derogatory racial comments made at closed door meeting was not a vindication of any contractual rights, precluding a § 1981 retaliation action).
2. Adverse Action
The second element of plaintiff's prima facie retaliation case is that he or she has experienced an adverse employment action. The EEOC has proposed a broad universe of adverse actions:
The most obvious types of retaliation are denial of promotion, refusal to hire, denial of job benefits, demotion, suspension, and discharge. Other types of adverse actions include threats, reprimands, negative evaluations, harassment, or other adverse treatment.
Suspending or limiting access to an internal grievance procedure also constitutes an "adverse action."
EEOC Compliance Manual, Section 8, at 11. The EEOC's definition was a critical response to several circuits in which courts had generally limited retaliation to ultimate employment actions as being "unduly restrictive" given that the statutes "prohibit any adverse treatment that is based on a retaliatory motive and is reasonably likely to deter the charging party or others from engaging in protected activity." See EEOC Compliance Manual, Section 8, at 13-14 (collecting cases).
The Supreme Court recently decided this issue in Burlington Northern & Santa Fe Railway Co. v. White, --- U.S. ---, 126 S.Ct. 2405 (2006), by unanimously adopting a broad objective standard of adverse employment actions similar to the one found in the expansive proposal recommended by the EEOC. Prior to Burlington Northern, there was a significant split in the circuits as to what constitutes adverse employment action for retaliation claims under Title VII. The Fifth and Seventh Circuits recognized only adverse actions rising to the level of an ultimate employment decision. Johnson v. Cambridge Indus., Inc., 325 F.3d 892, 902 (7th Cir. 2003); Krause v. City of La Crosse, 246 F.3d 995, 1000-01 (7th Cir. 2001); Mattern v. Eastman Kodak Co., 104 F.3d 702, 708 (5th Cir. 1997) abrogated by Burlington Northern, 126 S.Ct. 2405, ("To hold otherwise would be to expand the definition of "adverse employment action" to include events such as disciplinary filings, supervisor's reprimands, and even poor performance by the employee -- anything which might jeopardize employment in the future. Such expansion is unwarranted."); see also McGuire v. City of Springfield, Ill., 280 F.3d 794, 797 (7th Cir. 2002) ("An employer's action can be called 'retaliation' only if it makes the employee worse off on account of the protected activity.").2
The Supreme Court, however, rejected the view that Title VII's anti-retaliation provision was limited to an employer's actions affecting the terms and conditions of employment and, thus, abrogated these circuit courts' prior decisions limiting the definition of adverse actions to ultimate employment decisions. Instead, the Supreme Court held that the Title VII anti-retaliation protections extend to actions by an employer that are not employment related or that take place outside of the workplace. Burlington Northern, 126 S. Ct. at 2412-2414. The Court further emphasized that "the standard for judging harm must be objective" and interpreted this standard broadly. Id. at 2407. It only requires the plaintiff to show that "a reasonable employee would have found the challenged action materially adverse" and that challenged action "might well have dissuaded a reasonable worker from [protected conduct]." Id. at 2415.
In Burlington Northern, the plaintiff was transferred to a less desirable position in the company after complaining about gender discrimination and the suspended for insubordination after complaining about the transfer. Id. at 2406. The Court found that these discriminatory acts fell within the definition of "adverse action" under anti-retaliation laws, but, in expanding the definition, it emphasized an employee is not protected from any trivial act by an employer that creates a minor annoyance. Id. at 2415. Instead, it is the context that matters; "the significance of any act of retaliation will often depend upon the particular circumstances." Id. For example, "a supervisor's refusal to invite an employee to lunch is normally trivial, a nonactionable petty slight. But to retaliate by excluding an employee from a weekly training lunch that contributes significantly to the employee's professional advancement might well deter a reasonable employee from complaining about discrimination." Id. at 2415-16.
The courts have been quick to adopt the Burlington Northern broad "adverse action" standard in application to a variety of non-ultimate employer actions. See Carmona-Rivera v. Puerto Rico, 2006 WL 2612231 at *4-5 (1st Cir. Sept. 12, 2006) (adopting the Burlington standard despite the finding that the employer's delays in fulfilling the plaintiff's request for accommodation were not sufficient to prove adverse action); Kessler v. Westchester County Dept. of Social Servs., 2006 WL 2424705 at *10 (2d Cir. Aug. 23, 2006) (holding that plaintiff "presented sufficient evidence to create a genuine triable issue as to whether the reassignment to which he was subjected could well have dissuaded a reasonable employee in his position from complaining of unlawful discrimination."); Moore v. City of Philadelphia, 2006 WL 2492256 at *14 (3d Cir. Aug. 30, 2006) (finding "that a reasonable jury could conclude that a lateral transfer from the district where a police officer had earned goodwill and built positive relations with the community over time is the kind of action that might dissuade a police officer from making or supporting a charge of unlawful discrimination within his squad."); Pryor v. Wolfe, 2006 WL 2460778 at *2 (5th Cir. 2006) (finding that the plaintiff met the Burlington standard for adverse action where the defendant withheld his paycheck); Pegues v. Mineta, 2006 WL 2434936 at *7 (D.D.C. Aug. 22, 2006)(finding that the plaintiff's retaliation claims were not "trivial," "petty," or "minor" where the defendant's actions directly impinged on his ability to be promoted.); Storey v. Illinois State Police, 2006 WL 2385283 at *23 (S.D. Ill. Aug. 17, 2006) (holding that a jury could find that the defendant's various actions of taking away the plaintiff's responsibilities, giving her a "needs improvement" evaluation and a "constructive transfer," and denying her an open position for which she applied "would dissuade a reasonable individual from pursuing her rights under Title VII"); Gentry v. Wells Fargo, 2006 WL 2319987 at *16 (S.D. Ohio Aug. 09, 2006) (adopting the Burlington standard despite the fact that plaintiff's retaliation claim failed because an employer requiring an employee to comply with reasonable performance requirements and disciplining for noncompliance does not constitute an adverse employment action).
Notably, the Second Circuit adopted and applied the Burlington Northern standard in a First Amendment retaliation case. In Zelnik v. Fashion Institute of Tech., 464 F.3d 217, 225 (2d Cir. 2006). The plaintiff was a public employee who brought a claim for First Amendment retaliation after opposing a proposal by the employer and not being granted emeritus status. The Court reversed the District Court's analysis of an adverse employment action and found that the plaintiff need not prove that the action amounted to a "materially adverse change in the terms and conditions of employment." Id. at 225. Instead, the Second Circuit held that correct standard for First Amendment retaliation claims is whether the "retaliatory conduct that would deter a similarly situated individual of ordinary firmness from exercising his or her constitutional rights constitutes an adverse action." Id. Thus, an adverse employment action in this context may be a lesser form than termination or demotion, such as negative evaluation letters or assignment of lunch duty. Id. at 226.
However, in some cases, courts have attempted to remain more favorable to the employer by placing emphasis on enforcing a higher standard for proving that the alleged action taken against the employee be "significant" rather than "trivial." See Clark v. Potter, 2006 WL 2520348 at *11 (N.D. Ga. Aug. 30, 2006) (holding that although the new standard for adverse actions "falls short of ultimate employment decisions," the plaintiff must still demonstrate "some threshold level of substantiality," finding that employer's denial of FMLA leave, a letter of warning, and a 7-day suspension did not meet the threshold) (internal quotes omitted); Martin v. Merck & Co., Inc., 2006 WL 2468518 at *21 (W.D. Va. Aug. 28, 2006) (holding that the defendant removing plaintiff "from the relief operator position fails to support a prima facie case of retaliation because it would not dissuade a reasonable worker from making or supporting a charge of discrimination" by emphasizing that trivial incidents are still insufficient to support a claim of retaliation under the Burlington standard); Higgins v. Gonzales, No. 062556, 2007 WL 817505 (8th Cir. 2007) (rejecting plaintiff's argument that removal from tribal justice project, systematic denial of supervision, mentoring, and training, keeping "shadow file" about her performance, and false comments, stating, "She cannot make her claim based on personality conflicts, bad manners, or petty slights and snubs."). Cf., McGowan v. City of Eufala, 472 F.3d 736, 742 (10th Cir. 2006) (adopting the Burlington standard and finding that the plaintiff's termination was an adverse action, but that the employer's failure to reassign plaintiff to the day shift did not constitute an adverse action.) Id. at 742-43; Grice v. FMC Techs. Inc., 2007 WL 329265, *5 (5th Cir. Jan. 30, 2007) (recognizing that Burlington changed the applicable standard in the 5th Circuit, but holding that plaintiff's allegations for failure to promote and harassment were found so trivial that they were not the types of actions that would dissuade a reasonable employee from reporting discrimination).
Despite this more conservative interpretation made by some courts, the new standard in Burlington is still a marked victory for proponents of employee protections.
3. Causal Connection
The final element is that there must be a causal connection, or nexus, between the protected activity and the adverse action.
In Clark County Sch. Dist. v. Breeden, 532 U.S. 268 (2001) (per curiam), the Supreme Court held that there was no evidence of causation when the employer had already initiated adverse employment action, but had not fully implemented it at the time of the protected conduct. The lower federal courts have recognized this defense to retaliation claims. See, e.g., Warren v. Ohio Dep't of Public Safety, 24 Fed. Appx. 259, 266 (6th Cir. 2001); Bates v. Variable Annuity Life Ins. Co., 200 F. Supp. 2d 1375, 1383 (N.D. Ga. 2002); Ianetta v. Putnam Investments, Inc., 183 F. Supp. 2d 415, 426-27 (D. Mass. 2002); McFadden v. State Univ. of N.Y., College at Brockport, 195 F. Supp. 2d 436, 455 (W.D.N.Y. 2002); Kaplan v. City of Arlington, 184 F. Supp. 2d 553, 564 (N.D. Tex. 2002).
As one district court concluded, "an employee who knows that some adverse action is in the works cannot manufacture a claim for retaliation, based solely on the anticipated adverse action itself, merely by complaining of discrimination before the action is finally taken." McFadden, 195 F. Supp. 2d at 455.
In Clark County Sch. Dist. v. Breeden, 532 U.S. 268 (2001) (per curiam), the Supreme Court reversed the Ninth Circuit and upheld summary judgment for the employer, concluding that the employer either did not know that the plaintiff had filed an EEOC charge or knew about the filing of the charge 20 months earlier before the proposed adverse employment action, thereby defeating the causation element.
In 1994, Ms. Breeden, a School District employee, met with her supervisor and another male employee to review the psychological evaluation reports of four job applicants. The report of one applicants disclosed that the applicant had once commented to a co-worker, "I hear making love to you is like making love to the Grand Canyon." The supervisor read the statement aloud, and, looking at Breeden, said, "I don't know what that means." The male employee said, "Well, I'll tell you later," upon which both men laughed. Ms. Breeden complained about the comment to the employee who made it, to her supervisor, and to two Assistant Superintendents. Id. at 269-70.
In August 1995, Ms. Breeden filed a charge of discrimination with the EEOC. In April 1997, several months after receiving the right-to-sue letter, Ms. Breeden filed a Title VII retaliation lawsuit in which she alleged that she was punished for these complaints, including being transferred to a different position. Id. at 269, 271-72. The Ninth Circuit held that Ms. Breeden's opposition was protected "if she had a reasonable, good faith belief that the incident involving the sexually explicit remark constituted unlawful sexual harassment." Id. at 270.
In a per curiam opinion issued without hearing oral argument, the Supreme Court reversed, concluding that no reasonable person could have believed that the single incident violated Title VII's standard. The comment and chuckling by Breeden's co-worker "cannot remotely be considered 'extremely serious' as our cases require." Id. at 271. Secondly, Breeden was unable to show a causal connection between her protected activities and her transfer as the employer was "contemplating" the transfer before Breeden filed suit. Id. at 272. "Employers need not suspend previously planned transfers upon discovering that a Title VII suit has been filed, and their proceeding along lines previously contemplated, though not definitively determined, is no evidence whatever of causality." Id. Further, the Court held that even if the employer did know about the employee's filing of an EEOC charge, it knew 20 months prior to the adverse action, thereby negating an inference of causality. Id. at 273. The Court rejected the employee's claim that the EEOC's issuance of a right-to-sue letter could support temporal causation, since the employee took no part in that action. Id.
The lower federal courts have applied Breeden's holdings to retaliation claims with respect to (1) the temporal gap between the protected activity and the adverse employment action and (2) protected activity that occurs after the employer has already decided to initiate adverse employment activity (discussed in Part C, supra).
In Breeden, the Supreme Court held that 20 months was too long a gap between protected conduct and adverse employment action to prove temporal proximity, which is consistent with prior holdings of the lower courts, and the subsequent case law has similarly recognized that temporal gaps of 10 to 24 months cannot support temporal proximity. See, e.g., Shanklin v. Fitzgerald, 397 F.3d 596, 604 (8th Cir. 2005) (10 months); Vasquez v. County of Los Angeles, 349 F.3d 634, 646 (9th Cir. 2003) (13 months); Bishop v. Bell Atl. Corp., 299 F.3d 53, 60 (1st Cir. 2002) (12-30 months); Bernales v. County of Cook, 37 Fed. Appx. 792, 797-98 (7th Cir. 2002) (22 months); Scurto v. Commonwealth Edison Co., 37 Fed. Appx. 213, 216-17 (7th Cir. 2002) (10 months); Warren, 24 Fed. Appx. at 266 (11 months); Taylor v. Procter & Gamble Dover Wipes, 184 F. Supp. 2d 402, 417 (D. Del. 2002) (one to two years); Adams v. Calvert County Public Sch., 201 F. Supp. 2d 516, 520 (D. Md. 2002) (24 months); Hill v. Taconic Developmental Disabilities Servs. Office, 181 F. Supp. 2d 303, 322 (S.D.N.Y. 2002) (1.5 years); Figueroa v. City of New York, 198 F. Supp. 2d 555, 570 (S.D.N.Y. 2002) aff'd 118 Fed. Appx. 524 (2d Cir. 2004) ("Due to the passage of time [over a year] between the filing and these actions, there is no basis for inferring a causal connection."); see also Delk v. Arvinmeritor, Inc., 179 F. Supp. 2d 615, 624 (W.D.N.C. 2002) (4 months probably too long), aff'd 40 Fed. Appx. 775 (4th Cir. 2002) (per curiam); Wallace v. Georgia Dept. of Transp., No. 0613345, 2006 WL 3696267 (11th Cir. 2006) (finding seven month delay between plaintiff filing EEOC charge and employer's written reprimand of employee inadequate to establish causation); Altieri v. Albandy Public Library, 172 Fed. Appx. 331, 333 (2d Cir. 2006) (21-month gap between the protected activity and the alleged adverse employment action is not close enough in time to prove causation by temporal proximity); Sorez-Hae v. Roche, No. 05-15566, slip op., 2007 WL 579770 (9th Cir. Feb. 16, 2007) (one year between plaintiff's filing of EEOC complaint and his suspension not sufficient to establish causation).
However, even where an adverse action occurs close in time to the employee's protected activity, temporal proximity alone is not necessarily sufficient to support a finding of causation. See, e.g., Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054 (9th Cir. 2002) (finding that causation can be inferred from temporal proximity alone only when the adverse action "follows on the heels" of protected activity.); Strong v. University Health Care System, L.L.C., No. 0630270, 2007 WL 891148 (5th Cir. 2007) (finding plaintiff had engaged in poor performance and disruptive behavior and that she provided "no evidence of retaliation save temporal proximity."), accord, Tuttle v. Metropolitan Gov't of Nashville, 474 F.3d 307, 321 (6th Cir. 2007) (finding in a retaliatory termination case that temporal proximity and additional evidence of retaliatory conduct was established where plaintiff was terminated 3 months after filing EEOC charge and employer had threatened her with demotion or decrease in pay if she did not voluntarily transfer). Also, protected activity will not insulate an employee from negative employment action. In Mauder v. Metropolitan Transit Auth. of Harris County, Texas, 446 F.3d 574, 583 (5th Cir. 2006), the Fifth Circuit Court found that the employer began reprimanding plaintiff and putting him on notice of possible termination before plaintiff requested FMLA leave, and found that employer was not required to suspend plaintiff's termination pending the FMLA filing. Id. at 585.
In contrast, where the employee made repeated complaints during the same year as the adverse action, then temporal proximity existed to support causation. See Singfield v. Akron Metro. Hous. Auth., 389 F.3d 555, 563 (6th Cir. 2004) (holding that plaintiff could establish prima facie causation element based on three-month gap between complaint and retaliatory action); Calero-Cerezo v. U.S. Dep't of Justice, 355 F.3d 6, 25-26 (1st Cir. 2004) (finding one month sufficient to establish prima facie temporal connection); Winarto v. Toshiba Am. Electronics Components, Inc., 274 F.3d 1276, 1287 & n.10 (9th Cir. 2001) ("Winarto's several complaints . . . closely preceded the [adverse] evaluation."); see also Turner v. Housing Auth. of Jefferson County, 188 F. Supp. 2d 1066, 1079 (S.D. Ill. 2002) ("The fact that the plaintiff was fired two weeks after his complaints to management is a short enough time to establish the necessary causal link."); Elries v. Denny's, Inc., 179 F. Supp. 2d 590, 599 (D. Md. 2002) ("[P]laintiff shows retaliatory conduct that began shortly after filing a complaint, thus showing prima facie causation, even though actual termination came much later."); Little v. National Broadcasting Co., 210 F. Supp. 2d 330, 386 (S.D.N.Y. 2002) ("Muro engaged in protected activity when he filed a complaint with the NBC Ombudsperson in June 1998. His assignment two months later to undesirable shifts . . . raises a genuine issue of fact as to whether Muro's protected activity was followed so closely by discriminatory treatment as to establish causation by temporal proximity.").
The First Circuit rejected the employer's claim that an eleven month temporal gap between the employee's filing of a complaint and his demotion, since "temporal proximity is but one method of proving retaliation." Che v. Massachusetts Bay Transp. Auth., 342 F.3d 31, 38 (1st Cir. 2003). There was "ample evidence of disparate and discriminatory treatment from which a jury could find a causal connection between Che's demotion and his earlier lawsuits," id., particularly disparate disciplinary actions and racist remarks. For example:
. . . after Johnson disciplined Che for the argument, Che fainted and his union representative asked Johnson to call for help. In response, Johnson said "I think the chink is faking it." There was evidence at trial that Johnson and another MBTA supervisor referred to Che as a "chink" on other occasions. In sum, this evidence of discriminatory and disparate treatment is sufficient to meet "the relatively low threshold showing necessary to establish a prima facie case."
Id. at 39. The First Circuit found that the employer's proffered non-discriminatory reasons were pretextual in light of the strong evidence of disparate treatment. Id. at 40. ("In light of the evidence described above, we agree with the district court that there was sufficient evidence from which a jury could find that the MBTA's stated reason for Che's demotion was pretextual."). The First Circuit also found that the plaintiff suffered a retaliatory hostile work environment. Id.
The Seventh Circuit reversed the district court's determination that a three month gap between plaintiff's complaint and her termination was insufficient to state a retaliation claim, since temporal proximity was only one aspect of causation. Sitar v. Indiana Dep't of Transp., 344 F.3d 720, 728 (7th Cir. 2003). Critically, "Here, a trier of fact could find that the causal relationship existed from much more. Baker was visibly upset uponreceiving Price's findings and recommendations against him. He decided almost immediately, at the same meeting, that he would terminate Sitar." Id. Thus, the deposition testimony of the supervisor was sufficient to prove causation: "Sitar's complaint, legitimized by Price's findings, cast a shadow over Baker's performance, and he was embarrassed when he learned about Price's report in the presence of his supervisors. A reasonable jury could find that Baker punished Sitar for complaining about his misconduct, and not because her performance was allegedly unsatisfactory. Therefore, we find that Sitar has established a prima facie case of retaliation under the direct method." Id. at 729.
Moreover, even under the indirect method, it is not necessary for the plaintiff to prove causation. Id. ("Lack of causation should not have been the district court's sole basis for granting summary judgment. In Stone, we held that for a plaintiff proceeding under the indirect method, causation would no longer be a part of her prima facie burden.") (citing Stone v. City of Indianapolis Pub. Util. Div., 281 F.3d 640 (7th Cir.2002)).
The Ninth Circuit emphasized that since Breeden was an appeal from a grant of summary judgment, its standard is not directly applicable to a post-trial motion, in which the court must decide whether the plaintiff's "evidence allowed the jury to draw a reasonable inference of retaliatory motive." Winarto, 274 F.3d at 1287 n.10 ("Breeden does not control this case."). In such circumstances, the Ninth Circuit emphasized that the timing of events and the supervisor's known animus could support the jury's verdict for the plaintiff on her retaliation claim:
[Plaintiff's] several complaints, any one of which or combination of which could have triggered [the supervisor's] low evaluation of [plaintiff], closely preceded the evaluation. The evidence of timing of the events in this case and the evidence of [the supervisor's] hostility toward [plaintiff] could support a jury's reasonable inference that [the supervisor] had a retaliatory motive. Id.
In Porter v. California Dep't of Corrections, 419 F.3d 885, 895 (9th Cir. 2005), the Ninth Circuit clarified that Breeden could not be read as meaning that causality is dependent on temporal proximity. Id. A plaintiff may prove, despite the absence of temporal proximity that causation existed due to other circumstantial evidence. Id.
A factor that courts look at in determining the presence of retaliatory motive are negative or hostile remarks made, or actions taken, by the supervisor upon learning of the employee's protected conduct. These remarks and actions, even if anecdotal, can constitute direct evidence of retaliation. See, e.g., Azzaro v. County of Allegheny, 110 F.3d 968, 974 (3d Cir. 1997) ("[A] reasonable juror could infer that Braun knew Azzaro was for some reason on a 'hit list,' and that he sought to aid the efforts to 'get' Azzaro by including her discharge as part of his reorganization plan."); Lee v. New Mexico State Univ. Bd. of Regents, 102 F. Supp. 2d 1265, 1277, 1280 (D.N.M. 2000) (plaintiff "was subject to heightened scrutiny and surveillance" and her "colleagues were also asked to monitor her actions" in order to provide "negative feedback regarding plaintiff").
Another factor is whether the decision-maker was the "cat's paw" - i.e. an apparently neutral person whose actions were impermissibly influenced by those who had a retaliatory motive. For example, the Fifth Circuit, in a Title VII gender retaliation case, stated that the alleged innocence of a final decision maker cannot insulate the company from liability, "when the person conducting the final review serves as the 'cat's paw' of those who were acting from retaliatory motives, [then] the causal link between the protected activity and adverse employment action remains intact." Gee v. Principi, 289 F.3d 342, 346 (5th Cir. 2002) (reversible error to grant summary judgment where decision maker was improperly influenced by others). Bergene v. Salt River Project, 272 F.3d 1136, 1141 (9th Cir. 2001) ("Even if a manager was not the ultimate decision-maker, that manager's retaliatory motive may be imputed to the company if the manager was involved in [adverse action.]"). However, plaintiff must still establish either knowledge of complaints on the part of the decision-maker or influence by someone with knowledge of plaintiff's protected activity. See, e.g., Miscimarra v. Home Depot U.S.A., No. 04-17021, Slip Copy, 2007 WL 3486995 (9th Cir. Dec. 4, 2006) (upholding summary judgment in favor of defendant where plaintiff failed to produce evidence that the decision-maker who selected plaintiff for a reduction-in-force was aware of plaintiff's complaints about sexual harassment).
Courts also look to whether an employer has punished the plaintiff more seriously than other employees for the same alleged infractions. See, e.g., Smith v. Riceland Foods, Inc., 151 F.3d 813, 820 (8th Cir. 1998) (plaintiff "presented evidence that management at Riceland confronted her about filing her charge and that other employees who had not filed charges of discrimination were not investigated as closely or punished as severely as she was"); Marx v. Schnuck Markets, Inc., 76 F.3d 324, 329 (10th Cir. 1996) (plaintiff was "written up" after filing retaliation complaint); Weaver v. Casa Gallardo, Inc., 922 F.2d 1515, 1525 (11th Cir. 1991) superseded by statute on other grounds Civil Rights Act of 1991, Pub.L. No. 102-166, § 101, 105 Stat. 1071 (1991) ("The pronounced increase in negative reviews and the careful scrutiny of Weaver's performance, coupled with testimony suggesting that management personnel were acutely aware of Weaver's EEOC charge, is sufficient to establish a causal link for Weaver's prima facie case of retaliatory discharge."); Sumner v. U.S. Postal Serv., 899 F.2d 203, 209 (2d Cir. 1990) ("The causal connection between the protected activity and the adverse employment action can be established indirectly with circumstantial evidence, for example, . . . through evidence of disparate treatment of employees who engaged in similar conduct . . ."); Lee, 102 F. Supp. 2d at 1280 ("Such heightened scrutiny and differential treatment indicates that [supervisor] was acting out of a retaliatory mind set and intended to create a difficult work environment for plaintiff.").
Jury findings of retaliation are commonly affirmed based on evidence that the employer's stated reason was incorrect, particularly so where the stated reason is potentially mendacious. See, e.g. King v. Preferred Technical Group, 166 F.3d 887, 894 (7th Cir. 1999) (stated reason that plaintiff was fired for failure to produce missing doctor's slips belied by evidence that the reason was false and potentially mendacious). Reasons that are intertwined with an employee's conduct during the resulting investigation of her complaint may also be suspect. See Gilooly v. Missouri Dep't of Health & Senior Services, 421 F.3d 734 (8th Cir. 2005) (reversing summary judgment on retaliation claim in which plaintiff was terminated for a "lack of credibility" during the investigation of his complaints and holding that "questions related to the very substance of the investigation are 'not sufficiently independent' and therefore within the scope of the protected activity").
The failure of the employer to follow established protocols or procedures can also constitute evidence of retaliatory motive. McClam v. Norfolk Police Dep't, 877 F. Supp. 277, 283 (E.D. Va. 1995) ("The most telling evidence of pretext here is proof that the articulated reason for refusing to transfer McClam based on his disciplinary record was not consistently applied in the past" to other employees.
Direct evidence of causation is not necessary since the plaintiff may use circumstantial evidence to demonstrate causation. See, e.g., Aman, 85 F.3d at 1086 (five items of circumstantial evidence sufficient to prove causation); Goldsmith v. City of Atmore, 996 F.2d 1155, 1163 (11th Cir. 1993) ("The defendant's awareness of the protected statement, however, may be established by circumstantial evidence."); Russell, 160 F. Supp. 2d at 264 ("Thus, where direct evidence of causation is missing temporal proximity may provide the necessary nexus to meet the third element of the plaintiff's case."). However, "conclusory statements" alone are insufficient to prove causation. Tarin, 123 F.3d at 1265.
Causation is not susceptible to simple rules or line-drawing; the Seventh Circuit has stated the plaintiff "must demonstrate that the [defendant] would not have taken the adverse action 'but for' the protected expression." Adusumilli, 164 F.3d at 363 (citations and internal quotation marks omitted). The Eleventh Circuit has taken a slightly more lenient reading by holding that causation "is satisfied if the evidence shows that the protected activity and the adverse action are not totally unrelated." Berman, 160 F.3d at 701 (collecting cases). The Sixth Circuit has recognized that "no one factor is dispositive" but evidence of differential treatment "or that the adverse action was taken shortly after the plaintiff's exercise of protected rights is relevant to causation." Allen, 165 F.3d at 413. The District of Columbia Circuit has required both knowledge of the protected activity and temporal proximity. Carney, 151 F.3d at 1095 (citing Mitchell v. Baldrige, 759 F.2d 80, 86 (D.C. Cir. 1985)).
The Seventh Circuit concluded that where the plaintiff in a sexual harassment and retaliation case was herself terminated because she engaged in "highly inappropriate" workplace conduct towards male employees that the plaintiff could not maintain a retaliation claim based on having reported harassment by another co-worker. Hall v. Bodine Elec. Co., 276 F.3d 345, 359 (7th Cir. 2002) ("[A]n employee's complaint of harassment does not immunize her from being subsequently disciplined or terminated for inappropriate workplace behavior."). Here, the plaintiff admitted that she had engaged in sexual bantering, but claimed that it did not rise to the level of Title VII harassment. The Seventh Circuit rejected this argument, concluding that "Bodine was still permitted to terminate her. In fact, the company's failure to do so would have most likely constituted a Title VII violation