Retaliation: Western District of Virginia Decides First Retaliation Case Decision after Burlington Northern
In Burlington Northern v. White, 126 S.Ct. 2405 (June 22, 2006), the United States Supreme Court decided an important case that set forth a new test as to how courts would need to analyze Title VII retaliation claims.
A recent decision by Chief Judge Jones of the Western District of Virginia gives us some helpful insight as to how retaliation cases may be analyzed after Burlington Northern. In Martin v. Merck & Co., 2006 U.S. Dist. LEXIS 60830 (W.D. Va. Aug. 28, 2006), the Court granted summary judgment to Merck in a case involving allegations of race harassment, discrimination and retaliation. (Plaintiffs have appealed this decision to the 4th Circuit Court of Appeals. Thus, it is possible that the Fourth Circuit could reverse some or all of this decision.)
When Judge Jones issued his opinion in late August 2006, the case had three remaining plaintiffs, two of whom were currently employed. Plaintiff had alleged at least 38 separate objectionable occurrences at Merck’s Stonewall plant over a 25 year period of time. As to plaintiffs’ retaliation claims, plaintiffs alleged 10 specific instances of retaliation and a retaliatory hostile work environment resulting from their filing of EEOC charges in June 2000, initiating a lawsuit in December 2001, and raising various other discrimination allegations. A few of the specific allegations will be discussed below.
1. Change in Shift Found to Be “Minor Inconvenience.”
Plaintiff Martin took issue with the fact that in 2001, she was informed that she could no longer work a straight daylight shift but was given the choice between a rotating shift or a newly-created third shift.
The Court concluded that under the facts of this case, a change in the hours of her shift constituted a “minor inconvenience” which was not deemed to be a “materially adverse” change.
2. Restricting Plaintiff From Working in More Lucrative Area for 5 Months Was Not Materially Adverse.
Plaintiff Thomas was not permitted to work in the “filling room” for five months in 2002 because he had not completed certain mandatory job requirements. Thomas contended that two trainees were allowed to enter the filling room without completing the requirements.
The Court concluded that Merck had a logical explanation for permitting the trainees to work in the filling room and that it otherwise complied with its policy. Thus, the Court concluded that, “Given the temporary nature and logical explanation for Thomas’ exclusion from the filling room, I find that this exclusion…would not dissuade a reasonable worker from making or supporting a charge of discrimination.” Id. at *63.
3. Reassignment to Another Product Line Was Not Materially Adverse.
Plaintiff Tams had worked in an operator position on the packaging line for almost 25 years. Upon returning to work after sick leave in 2001, she had certain work restrictions that Merck contended did not allow her to return to her prior position on the packaging line. Tams argued that Merck should have accommodated her by permitting her to take the spot of a less senior employee who had another position on the packaging line. Tams was placed temporarily in another area. Tams was eventually put back on the packaging line position when there was an opening.
The Court concluded that Tams’ reassignment was temporary, was in the same building and was in the same category of “pharmaceutical processor.” There was no evidence to support that the tasks involved were more arduous or less desirable. Accordingly, the Court concluded that this reassignment was “not materially adverse.” Id. at *66-68.
4. Getting “Cold Shoulder” From Co-Workers Constituted Petty Slight and Minor Annoyance.
Plaintiff Tams alleged that in 2002, she was verbally harassed and insulted in the locker room by two white co-workers because of her race. She complained and the two employees ultimately received one day suspensions. Tams alleged that after she reported the harassment, she subsequently experienced hostility from other employees in the locker room. Specifically, she claimed that the other employees would walk out of the locker room and break room whenever she walked in.
The Court concluded that these actions by her co-workers failed the material adverse prong of retaliation. “While being avoided and ignored by fellow employees is undoubtedly uncomfortable, I find that it is in within the category of ‘petty slights and minor annoyances’ and would not ‘dissuade a reasonable worker from engaging in a protected activity.’”
The prediction after Burlington Northern was that fewer Title VII retaliation claims would be dismissed by summary judgment. This prediction may turn out to be accurate. These cases, however, will continue to be analyzed on a case-by-case basis. Judge Jones’ decision in Merck is a good example of this point.
On the front end, companies are well advised to include retaliation training and education as part of their overall EEO training for supervisors. Moreover, companies must ensure that they have effective anti-retaliation policies and practices in place to prevent and correct alleged cases of retaliation. Please let us know if we can help you with these initiatives.
Todd Leeson presented the defense counsel’s perspective on Title VII retaliation claims after Burlington Northern at the Virginia Bar Association Labor & Employment Law’s 36th Annual Conference in October 2006. If you would like to know more about this topic or receive a copy of the 23 page paper that accompanied this presentation, please contact Mr. Leeson.