Title VII Retaliation Claims After the Supreme Court Decision in Burlington Northern

On October 6, 2006, Mr. Paxton and Mr. Leeson presented on the above topic at the Virginia Bar Association’s Section on Labor and Employment Law’s 36th Annual Conference. This paper is a shortened version of the 23-page written paper that accompanied the presentation. Readers of this article who would like additional information on this topic should contact Mr. Paxton or Mr. Leeson.

In June the United States Supreme Court decided an important Title VII retaliation case, Burlington Northern & Santa Fe Railroad Co. v. White, 126 S. Ct. 2405 (June 22, 2006). The initial reaction was that this decision would open the floodgates to a new era in employment litigation. While this was clearly an important case with many lessons for corporate America, it is our judgment that the case will not have the devastating impact that many predicted.

Retaliation Claims are on the rise

Lawsuits which include retaliation allegations are unquestionably on the rise and have been for a number of years. In 1991, the Equal Employment Opportunity Commission (EEOC) reported that it had received a total of 8,504 retaliation charges, which constituted only 13.3% of all the charges which the EEOC received under Title VII of the Civil Rights Act, the Age Discrimination in Employment Act (ADEA), the Americans with Disabilities Act (ADA) and the Equal Pay Act (EPA). By the end of fiscal year 2005, the number of retaliation charges had risen by more than 250% to a total of 22,278. This figure represented 29.5% of all charges filed with the EEOC in FY2005. Whether Burlington Northern will lead to more EEOC charges is unclear. However, it is almost certain to give attorneys who represent employees a new reason to consider taking a case where acts of alleged retaliation are involved.

The Facts in the Burlington Northern case.

Sheila White was employed as a “track laborer” in the Maintenance of Way department at Burlington’s Tennessee yard. She was hired by Marvin Brown, and was the only woman working in the Maintenance of Way department. Shortly after her employment began, Brown assigned her to operate the forklift as her primary responsibility. In September, 1997 White complained to Burlington officials that her immediate supervisor, Bill Joiner, had repeatedly told her that women should not be working in the Maintenance of Way department. White also alleged that Joiner had made insulting and inappropriate remarks to her in front of her male colleagues. After an internal investigation, Burlington suspended Joiner for 10 days and ordered him to attend a sexual harassment training session.

Brown informed White about Joiner’s discipline on September 26. At the same time, he told White that he was removing her from forklift duty and assigning her to perform only standard track laborer tasks. Brown explained that the reassignment reflected co-worker’s complaints that, in fairness, a “more senior man” should have the less arduous and cleaner job of forklift operator.

On October 10, White filed a complaint with the Equal Employment Opportunity Commission (EEOC). She claimed that the reassignment of her duties amounted to unlawful gender-based discrimination and retaliation for her having earlier complained about Joiner. In early December, White filed a second retaliation charge with the EEOC, claiming that Brown had placed her under surveillance and was monitoring her daily activities. The charge was mailed to Brown on December 8.

A few days later, White and her immediate supervisor, Percy Sharkey, disagreed about which truck should transport White from one location to another. Later that afternoon, Sharkey told Brown that White had been insubordinate. Brown immediately suspended White without pay. White invoked internal grievance procedures. Those procedures led Burlington to conclude that White had not been insubordinate. Burlington reinstated White to her position and awarded her back pay for the 37 days she was suspended. White filed an additional retaliation charge with the EEOC based on the suspension.

After exhausting her administrative remedies, White filed a Title VII action against Burlington claiming that Burlington’s actions in changing her job responsibilities and suspending her for 37 days without pay amounted to unlawful retaliation in violation of Title VII. A jury found in her favor. A divided Sixth Circuit panel reversed the judgment and found in Burlington’s favor on the retaliation claims. The full Court of Appeals vacated the panel’s decision, however, and heard the matter en banc. The Sixth Circuit then affirmed the District Court’s judgment in White’s favor on both retaliation claims. While all members of the en banc Court voted to uphold the District Court’s judgment, they differed as to the proper standard to apply. The United States Supreme Court then granted certiorari to resolve the issue.

Supreme Court’s Decision in Burlington Northern.

The Supreme Court decided two legal issues in Burlington Northern. The Court’s analysis will be summarized below.

A.Court held that Title VII retaliation claims are not limited to those employer actions that are related to employment or the workplace.

As noted above, there were several circuits, including the Fourth Circuit, that had applied the same standards for retaliation claims that they applied to substantive discrimination claims—to be actionable, a plaintiff had to prove that the post-complaint actions resulted in an adverse employment action.

The Court contrasted the language of Title VII’s core anti-discrimination provision with the anti-retaliation provision. It noted that the terms of the anti-discrimination provision “explicitly limits the scope of that provision to actions that affect employment or alter the conditions of the workplace.” The Court further noted that the anti-discrimination provision “seeks to prevent injury to individuals based on “who they are, i.e., their status.” 126 S.Ct. at 2411-12.

In contrast, the Court found that Title VII’s anti-retaliation provision did not use language limiting retaliation to actions that affected the workplace. Moreover, the Court opined that the anti-retaliation provision “seeks to prevent harm to individuals based on what they do, i.e., their conduct.” Id.

Accordingly, the Court concluded that “the employer can effectively retaliate against an employee by taking actions not directly related to his employment or by causing him harm outside the workplace.” Id. at 2412.

As examples, the Court cited cases such as Berry v. Stevinson Chevrolet, 74 F.3d 980 (10th Cir. 1996) (finding actionable retaliation where employer filed false criminal charges against former employee who complained about discrimination).

In conclusion, the Court held that the scope of Title VII’s anti-retaliation provision extends beyond workplace-related or employment-related retaliatory acts and harm. Id. at 2414.

B.Court held that injuries or harm could be actionable if it could be found to be “materially adverse” to a reasonable employee under the circumstances.

The second legal issue concerned how harmful an act of retaliatory discrimination must be in order to fall within the provision’s scope.

Adopting the analysis of the Seventh and District of Columbia Circuits, the Court set forth the following test:

In our view, a plaintiff must show that a reasonable employee would have found the challenged action materially adverse which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination. [citation omitted]. We speak of material adversity because we believe it is important to separate significant from trivial harms. Id. at 2415.

The Court provided further insight with statements like the following:

An employee’s decision to report discriminatory behavior cannot immunize that employee from those petty slights or minor annoyances that often take place at work and that all employees experience. Id.

Similarly, the Court noted that “personality conflicts at work,” or “snubbing” by supervisors and co-workers are generally not actionable.

The Court further emphasized that the reference to a “reasonable employee” was used because the “standard for judging harm must be objective.”

In language that is sure to be often cited and frequently litigated, the Court further stated as follows:

We phrased the standards in general terms because the significance of any given acts of retaliation will often depend upon the particular circumstances. Context matters. The real social impact of workplace behavior often depends on a constellation of surrounding circumstances, expectations and relationships which are not fully captured by a simple recitation of the words used or the physical acts performed. . . . An act that would be immaterial in some situations is material in others. Id. at 2415-16.

C. Analysis of court’s standards to facts.

1. Reassignment of White’s duties was found to be materially adverse under the facts.

Burlington argued that White’s “reassignment of duties” did not constitute retaliatory discrimination because she was working as a “track laborer” at the same pay rate both before and after her discrimination complaint. The Court disagreed and found that this fact was not dispositive.

Whether a particular reassignment is materially adverse depends upon the circumstances of the particular case, and should be judged from the perspective of a reasonable person in the plaintiff’s position, considering all the circumstances. Id. at 2417.

Based on the record, the Court concluded that there was ample evidence that White was reassigned to duties that were “more arduous and dirtier,” and that it was “objectively considered” a lesser job than the one she previously held.

2. White’s suspension was found to be materially adverse even though she received back pay for her suspension.

As noted above, after Ms. White had filed an EEOC charge alleging gender discrimination, harassment and retaliation, she had a disagreement with her supervisor that resulted in her suspension without pay for 37 days. White invoked an internal grievance process which led Burlington to conclude that she should not have been suspended. Accordingly, Burlington reinstated White and awarded her back pay for the 37 days she was suspended. Burlington argued that because it ultimately reinstated White with back pay, her retaliation claim as to this incident lacked statutory significance and was not actionable. The Court disagreed.

A reasonable employee basing the choice between retaining her job (and paycheck) and filing a discrimination complaint might well choose the former. That is to say, an indefinite suspension without pay could well act as a deterrent, even if the suspended employee eventually receives back pay. Id. at 2417.

Accordingly, the Court concluded that there was sufficient evidence to support the jury’s conclusion that the 37 day suspension without pay was materially adverse.

Practical Recommendations, Insights, Unanswered Questions and Other Food For Thought.

In Title VII retaliation cases after Burlington Northern, there will be uncertainty in cases in which current employees allege that bad things happened to them after they lodged a discrimination or harassment complaint.

With renewed emphasis on retaliation claims, companies must ensure that they have effective anti-retaliation policies in effect. Cf. Gallina v. Mintz, Levin, 123 Fed. Appx. 558, 565, 2005 U.S. App. LEXIS 1710 (4th Cir. Feb. 2, 2005) (in assessing whether punitive damages were appropriate, court highlighted fact that “there was no evidence that [defendant] had any specific policy regarding retaliation”).

Companies should also emphasize in their training and education, especially to supervisors, that they will not tolerate retaliation. Stated another way, companies need to make sure that their managers know that the company prohibits retaliation against any employee who lodges a complaint of alleged unlawful treatment.

Potential Challenges/Questions for the Employer: How should the company respond when it learns that a current employee has engaged in protected activity by lodging a discrimination or harassment complaint?

• How will the company deal with the “angry supervisor” who may have the following opinion — “We need to run our business. I’m not going to let Sally’s bogus complaint alter how I supervise her. She needs to shape up or face the consequences.”
• What about the “angry or ignorant co-worker” — “I can’t believe Sally complained and got Fred fired. She is evil and manipulative and does not pull her weight. She needs to go. I am not going to deal with her anymore.”
• The human resource director and/or management needs to be more proactive in assessing whether the complainant is experiencing (or is likely to experience) any adverse treatment or change that could be considered material.
• Company management needs to be careful as to its communications, especially internal email. Unless company can claim privilege, email messages regarding the complainant will be discoverable!
• Human Resources and/or upper management should monitor situation, including periodic communications with complainant (preferably confirmed in writing) to ensure that he does not have any current or additional complaints that have not been adequately addressed.
• Company must be especially careful that it has its “ducks in a row” if it needs to take an adverse employment action against the complainant.
• The timing of any adverse action or significant change in the employee’s work environment or status must be carefully considered as part of the overall decision-making process.

What employer actions outside the workplace will be found to be retaliatory?

• It seems that an employer who files a counterclaim or lawsuit against an employee who engaged in protected activity could be subject to a Title VII retaliation claim. Bear in mind that the Court has already concluded that negative job references for former employees could constitute retaliation under Title VII. Robinson v. Shell Oil Co., 519 U.S. 337 (1997). What other claims might exist?

After Burlington Northern, there will be renewed emphasis on whether the employee engaged in “protected activity” (the first element of the prima facie case). See, e.g., Jordan v. Alternative Res. Corp., 2006 U.S. App. LEXIS 20737 (4th Cir. Aug. 14, 2006) (holding that plaintiff’s complaint did not constitute protected activity); Mann v. First Union Nat’l Bank, 2006 U.S. App. LEXIS 14518 (4th Cir. June 13, 2006) (summary judgment affirmed because plaintiff “could not have reasonably believed that the activities she complained of in her September 1998 memoranda were unlawful employment actions prohibited by Title VII”).

Cf. Slagle v. County of Clarion, 435 F.3d 262 (3rd Cir. 2006), cert. denied (June 19, 2006) (Supreme Court declined to review decision that plaintiff’s EEOC charge alleging “civil rights” violations did not constitute protected activity because he filed a facially invalid EEOC charge that did not allege a type of discrimination prohibited by the statute); Anduve v. Fla. Atl. Univ., 151 Fed. Appx. 875, 2005 U.S. App. LEXIS 21255 (11th Cir. Sept. 29, 2005), cert. denied (June 12, 2006) (Court declined to hear case in which Appeals Court concluded that employee who filed an internal race discrimination complaint and participated in its internal investigation was not protected by the “participation” clause of Title VII ‘s retaliation provision).

It is also a safe bet that the “causal connection” element of the prima facie case will receive more attention. Employers will likely more vigorously argue that the purported materially adverse changes cannot be found to be causally connected to the protected activity (i.e., the complaint of unlawful conduct). On this element, the temporal proximity will be an important consideration. See, e.g., Pascual v. Lowe’s Home Centers, Inc., 2006 U.S. App. LEXIS 19760 (4th Cir. Aug. 2, 2006) (3 month time period separated termination from protected activities; court found this time period to be “too long to establish a causal connection by temporal proximity alone”).