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DTCI: Retaliation by association on the rise

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Klingerman-Trenten Klingerman

By Trenten D. Klingerman

On Jan. 24, 2011, the U.S. Supreme Court issued its opinion in Thompson v. North American Stainless, LP, 131 S. Ct. 863 (Jan. 24, 2011). Thompson is the most recent in a trilogy of Supreme Court retaliation cases. Beginning with Burlington Northern & Santa Fe Railway Co. v. White, 537 U.S. 52, 126 S. Ct. 2405 (2006), and continuing through Thompson, a clear pattern has emerged. The recent Supreme Court retaliation jurisprudence has incrementally but consistently expanded the scope of retaliation protections under section 704(a) of the Civil Rights Act of 1964 (“Title VII”). 42 U.S.C. § 2000e-3(a). The trend requires that employers take notice and that defense counsel understand the trilogy of cases and the limits of the expansion.

The first case in the retaliation trilogy was Burlington Northern, in which the court determined the scope of conduct that could be deemed an “adverse action” under Title VII’s retaliation provision. Sheila White was a track laborer who was primarily assigned to operate a forklift – a job that she considered preferable to other, more arduous track laborer tasks. Several weeks after White began working, she complained that her supervisor had repeatedly said that women should not be working as track laborers and had made insulting and inappropriate remarks to her. The employer investigated White’s claims and suspended her supervisor and ordered him to attend sexual harassment training. Almost immediately after White’s supervisor’s suspension, White was removed from forklift duty and assigned to perform dirtier, more physically demanding jobs. She also alleged that her employer had “placed her under surveillance and was monitoring her daily activities.” White then filed a series of EEOC complaints, alleging that her assignment was retaliatory and discriminatory. Shortly thereafter, she was suspended for insubordination.

Following a jury verdict for White, Burlington Northern appealed, arguing that there was too tenuous a link between White’s employment and the adverse actions that she alleged. The Supreme Court ultimately granted certiorari to resolve a circuit split and to resolve the issue of “whether Title VII’s anti-retaliation provision forbids only those employer actions and resulting harms that are related to employment or the workplace.” Burlington Northern, 548 U.S. at 61, 126 S. Ct. at 2411.

The court concluded that the objectives of Title VII’s anti-retaliation provision were (1) to prevent discrimination in the workplace and (2) to prevent an employer from interfering with an employee’s efforts to enforce Title VII. The court concluded that the objective of preventing interference could not be secured if courts were to focus only upon harm that concerned employment and the workplace. Thus, it held that a Title VII retaliation plaintiff need not establish that the alleged adverse action was related to terms, conditions, or benefits of employment. Rather, the plaintiff must establish that “a reasonable employee would have found the challenged action materially adverse.” Burlington Northern, 548 U.S. at 68, 126 S. Ct. at 2415.

The second case in the retaliation trilogy, Crawford v. Metropolitan Government of Nashville and Davidson County, 129 S.Ct. 846 (2009), marked another incremental expansion of Title VII’s retaliation protections. In that case, Vicky Crawford, a 30-year employee of the defendant’s school district, answered questions about a school administrator during the course of the defendant’s internal sexual harassment investigation. Crawford told the defendant’s human resources officer of four instances of inappropriate behavior by the administrator who was under investigation. Crawford and two other employees who accused the administrator of inappropriate conduct were fired shortly after the investigation concluded. The administrator was not disciplined.

Section 704(a) of Title VII comprises two anti-retaliation provisions. The “opposition clause” protects an employee who has “opposed any practice made an unlawful employment action” under Title VII. The “participation clause” protects an employee who “has made a charge, testified, assisted or participated in any manner in an investigation, proceeding or hearing” under Title VII. Crawford sued her employer for retaliation under Title VII, claiming that she was terminated because she cooperated in the internal investigation. Crawford argued that her termination violated both the opposition and the participation clauses.

The trial court granted the employer summary judgment, which was affirmed by the Sixth Circuit. Both lower courts held that Crawford’s cooperation with the internal investigation was insufficient to trigger either the “opposition” or “participation” clause. The lower courts held that merely answering questions posed by an internal investigator was not the type of active, consistent opposition demanded by § 704(a).

The Supreme Court concluded that failing to protect an employee who reports discrimination in response to an employer’s questions was contrary to the court’s Ellerth and Faragher decisions, which created an incentive for employers to conduct internal investigations to correct discriminatory activities. The court noted that failing to protect the employees who cooperate in internal investigations could provide employees with a “good reason to keep quiet about Title VII offenses,” which is contrary to Title VII’s primary objective of preventing workplace discrimination. Thus, the court held that Crawford’s report of discrimination in response to her employer’s questions was protected by the opposition clause.

While many commentators opined that the Burlington Northern and Crawford expansions would create traps for unwary employers and create a groundswell of new claims, those of us who defend employers primarily in the Seventh Circuit rested easier knowing that the court had essentially adopted the analysis already used by most courts in our circuit. See, e.g., Washington v. Illinois Dept. of Revenue, 420 F.3d 658, 662 (7th Cir. 2005) (finding an action is adverse if it would have dissuaded a reasonable worker from making a charge of discrimination); McDonnell v. Cisneros, 84 F.3d 256, 262 (7th Cir. 1996) (recognizing a “passive opposition” retaliation claim). The final case of the retaliation trilogy does mark a departure from existing Seventh Circuit precedent and could represent an expansion of Title VII retaliation claims.

In Thompson v. North American Stainless LP, the plaintiff, Eric Thompson, and his fiancée, Miriam Regalado, were both employees of North American Stainless (“NAS”). Regalado filed an EEOC charge against NAS, alleging sex discrimination. NAS fired Thompson three weeks after it received notice of Regalado’s charge. Thompson then filed his own EEOC charge and ultimately sued NAS for retaliation under Title VII. Thompson alleged that NAS fired him in order to retaliate against Regalado for filing her charge. The district court granted summary judgment, concluding that Title VII did not permit “third-party” retaliation claims. The district court was reversed by a panel of the Sixth Circuit, but later affirmed by the Sixth Circuit en banc.

The Supreme Court reviewed the case to determine whether NAS’s firing of Thompson constituted unlawful retaliation and, if it did, whether Title VII granted Thompson a cause of action. The court cited Burlington Northern in noting that it would broadly construe Title VII’s anti-retaliation provision. Finding it “obvious” that a reasonable worker might be dissuaded from engaging in protected activity if she knew that her fiancé would be fired, the court had no trouble holding that Thompson’s firing constituted unlawful retaliation. The court refused to identify a fixed class of relationships that could fall within the third-party retaliation scheme, noting only that “firing a close family member will almost always meet the Burlington standard, and inflicting a milder reprisal on a mere acquaintance will almost never do so … .” Thompson, 131 S. Ct. at 868.

The second question – whether Title VII granted Thompson a cause of action – was more difficult. Title VII provides that a claim may be brought “by the person claiming to be aggrieved.” 42 U.S.C. § 2000e-5(f)(1). The court rejected the argument that the “person aggrieved” provision of Title VII should be read as coextensive with Article III standing. The court explained that an expansive injury-in-fact rule would lead to absurd consequences, such as a shareholder filing a Title VII claim alleging diminution in stock value against a company that fired a valuable employee for discriminatory reasons.

The court also rejected a narrow construction of the “person aggrieved” provision, under which only employees who engaged in protected activity could bring a Title VII action. Noting that there was no textual support for the narrow construction, the court found “no basis in text or prior practice for limiting” the “person aggrieved” provision to employees who engaged in protected activity.

Instead, the court adopted a “zone of interests” test to determine standing in Title VII cases. The test requires a court to find standing if the plaintiff can establish that he falls within the zone of interests sought to be protected by Title VII. Standing would not be found if the plaintiff’s interests were only “marginally related to or inconsistent with the purposes” of the statute.

The court then found that Thompson was an employee of NAS who was fired in order to harm Regalado. Given that the purpose of Title VII is to protect employees from employers’ unlawful actions, the court concluded that Thompson was within the zone of interests and, therefore, a person aggrieved under Title VII.

Before Thompson was decided, retaliation claims were already on the rise. From fiscal year 1997 through fiscal year 2010, the number of retaliation claims filed nearly doubled, growing from 18,198 to 36,258 claims per year. There is little doubt that the number of claims will continue to increase following Thompson.

The retaliation trilogy of cases requires employers, and those advising them, to be mindful of the risk of retaliation claims. These risks now include actions taken within and outside the workplace; whether directly related to employment or not. The risk of a retaliation claim also extends to employees who have not actively opposed discrimination or who may not have engaged in any protected activity at all.

For employers, the message is clear: when making the decision to take an adverse action against an employee, always insure that there is a legitimate business reason for the action. Employers must also consider similarly situated employees to check whether policies and procedures are administered uniformly. A review of existing policies and procedures to make sure they provide adequate admonitions and protections against retaliation is a good idea. It is equally important to train frontline supervisors on the importance of documenting employee performance and discipline, and of the risks involved in retaliatory behavior.

For counsel representing employers, it is important to understand the limits of the retaliation trilogy. The standard enunciated in Burlington Northern is an objective standard: that an adverse action would have been a material deterrent to a reasonable employee. Petty slights and immaterial, everyday challenges are unlikely to rise to the level of an actionable predicate to a retaliation claim.

While Crawford permits passive opposition (i.e., answering questions), it is still clear that some form of action is required to fall within the opposition clause. Silence is not protected activity. Also, the employee must prove that the employer knew of his opposition and that the opposition activity caused the adverse action.

Thompson also has limits. While the court did not articulate a meaningful rule regarding third-party retaliation claims, it did provide some guidance. It seems clear that mere colleagues or work acquaintances would not fall within a zone of interests articulated by Thompson. Thompson leaves open arguments regarding relationships that fall along the continuum that starts with acquaintances and ends with fiancés. Counsel should continue to monitor lower courts’ application of the trilogy, which will no doubt continue to shape the analysis of evolving retaliation standards.•

Mr. Klingerman is a partner in the Lafayette firm of Stuart & Branigin and chairs the DTCI Employment Law Section. The opinions expressed in this article are those of the author.

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  1. Am I the only one who sees that the City is essentially giving away the MSA site AND giving millions to build new buildings on the site when this site would be the perfect place for the Justice Complex? Across from City-County, check; keeping it centrally located, check, etc. It's my understanding that the GM site must be purchased by the City from Motors Liquidation Company. STOP WASTING WHAT WE ALREADY HAVE AND OUR TAX DOLLARS! The Ballard Administration has not been known for it's common sense...never voted for him and never will!

  2. This guy sounds like the classic molester/manipulator.

  3. Louis D. Brandeis was born in 1856. At 9 years of age it would have been 1865. The Brandeis family did not own slaves. My source Louis D. Brandeis: A Life, by Melvin L. Urofsky.

  4. My name is Matthew Lucas Major, I recently went through a jury trial in Bloomington , In. It was the week of Feb 19-21. Although I have been incarcerated since August 5, 2014. The reason I 'am writing to you sir is on the 21 of February the jury came in with a very excessive and wrongful verdict of guilty on 6 child molesting charges against my daughter who was 9 at the time I was accused. I also had 2 other Felonies one of Intimidation and 1 of Sexual Vicarious Gratification. Judge Marc Kellam on the second day of trial gave me a not guilty on those 2 felonies. The jury was sent out during that time and when brought back Judge Kellam told them to not concern themselves with the 2 Felonies that he ruled on them. They were told to not let evidence they had already heard influence there verdicts. I never in my life touched any child sexually and definitely not with my own daughter. When I was arrested Detective Shawn Karr told me I would be convicted guilty just on my daughters word even without evidence. That's just what happened. my public defender did me so wrong he never once proved to the court and jury all the lies the child told, and Jeremy Noel my public defender could of proven the lies easily. The stories in Serenity's depositions and Forensic interview changed and were not consistent as Prosecutor Darcie Fawcett claimed they were. Yet my attorney never mentioned that. The facts that the child accused me of full penetration in her vagina and rectum was proven lies. Doctor Roberta Hibbard of Riley hospital in Indianapolis confirmed Serenity's hymen intact, no scars, no tearing, no signs of rape to her. Yet my attorney didn't use that knowledge . the DNA was all in my favor. I tell you I will spend my entire life in prison going through rape and beatings etc. even Judge Kellam abused his authority by telling the jurors to listen and believe what the prosecutors side in evidence like my daughters testimony. In one interview with the detectives my daughter got flustered with her mom and said on camera " I'm saying what you told me to mom"!! Yet Mr. Noel said nor did anything to even resemble a defense attorney. Judge Kellam allowed edited version of a taped conversation between the child and her mother. Also Judge Kellam allowed the Prosecutor too bring in to my case a knife found under my seat, the knife wasn't part of my case. She was allowed by my attorney and the judge to put a huge picture of it on the screen and huge picture of my naked privates in a full courtroom and open court. Ms. Fawcett says to jury see how easy Mr. Major could reach the knife and cut his Childs throat. Even though I had no weapons charge against these cases. This gave the jurors prejudice thought against me thinking I threatened her with that knife and how scared she would of been knowing i could get it and kill her. On my sentencing court March 19, 2014 my public defender told Judge Kellam he wish to resign from being my attorney and wished for the court to give me outside council to file a error to trial or appeal. We were denied. Now after openly knowing my public defender don't want to represent me he has to. Well when as parents we make our kids clean a room when they really don't wish to, well the child will but don't mean she will do a good job, that's where I'm at with Mr. Noel. please dont ignore mine and my families pleas for your help . we have all the legal proof you could need to prove Im innocent. Please dont make my spend years in prison innocent when you can fix this wrong. Im not saying Im a perfect man or that I was a perfect dad to my 2 children none of us are. Ive made some bad choices in life and I paid for them. But I didnt ever touch or rape my daughter . I love my children with all my heart. And now through needing attention and a ex-wife who told my granny several times she wish she could put me in prison to get me out of their lives. Well my ex finally accomplished her goal. Sad part is she is destroying our daughter with all this horrific lies and things she taught my daughter to say. My daughter will need therapist to ever hope for a chance of a normal life after what she had done to her by her mom and their side of the family. My daughter told everyone even on stand she had a dream months before i supposedly molested her in this dream I was molesting her and when I finally did it matched her dream perfectly. She admitted to watching movies about little girls being molested and watching U-Tube videos about child molesting all before it happened supposedly to her. Doesn't that sound very unusual that a non molested 9 yr old would need to know so much about being molested? The only reason I could think a 9 year old would need so much information is to be prepared to know what to say and be able to say how it felt what took place etc.. So when questioned by authorities she would be prepared. And there again sir if a parent is pre grooming a 9 year old child she would need intimate details . Like telling her daughter about a couple moles on my private area. The child admitted to sneaking my cell and looking many many times at nudes of me and my girlfriend even one where my penis was entering my girlfriends vagina. In that picture my moles are obvious. Yet when prosecutor showed everyone in court my privates and pictures of the moles she said the only way the child would know about them is if she saw them for herself. My attorney once again said nothing about the pictures my child saw. Or could a ex-wife be able to describe my moles to help her case against getting rid of me? I beg you help me. This is my very existence. Ive lost everything , a good job, a wonderful girlfriend, my freedom, but worse thing Ive lost is my children. They were my reason to get up every morning and strive to be better. The wonderful bond I had with my Serenity is gone. After this I would be afraid to even hug her for fear of what next can they do to me. I'm not afraid to tell you I sit here in this cell and try to hold back my tears. Everyone knows you cant show weakness in prison. My life has already been threatened here at Wabash Valley Prison. After only 3 days of arrival. I was tricked into signing a waiver now Im in G Block General Population with 6 child molesting felony charges. Mrs. Hart as a 18 year old I almost died hooked to machines in hospital almost 1 month and now I know that fear was childish compared to this . I cant help but put emotions in this, after all Mrs. Hart Im human and God help Me I never been more afraid in my life. I didnt hurt my little girl I didnt touch her sexually. As much as it shreds me and fills my mind what Im facing I worry more about my mom and granny because of their great love for me mam they are suffering so deeply. I aint done this things but my loved ones suffering right along beside me and If you take my case you will be in essence freeing them also. I sent momma this letter and asked her to email it to you. I'm scared I have been done so unjustly by our legal system and I need you to fix this and give me freedom. I ask you please don't just ignore my pleas. Here in America its nice to be able to trust our legal justice system, well they destroyed my and my loved ones trust in our justice system . And I'm trusting in You !!! My entire family is suffering this nightmare with me. My 77 year old granny had a stroke and isn't doing so well. My single mother that raised 3 kids alone is dying from Lupus and since my arrest has stayed so sick and weary. Our lives torn to peices by a government I was taught I could trust in. my momma has tried so many innocent project and wrongfully accused and cant get anywhere. please please help me. A quote from the late Nelson Mandela: To be free is not merely to cast off ones chains, But to live in a way that respects and enhances The Freedom Of Others. I have Faith in you and your clinic to cast my chains off and give me freedom I do deserve as a wrongfully accused Man, son, brother, father, friend. Matthew Major DOC# 246179 Cause # : 53c02-1308-FA-000779 God Bless you. Please contact me with your decision so I know you made a life changing decision for me , just please at least write me so I know you care enough about your citizens to respond to cries for your help. You can speak openly with my mother Charlotte Spain (828) 476-0406: 71 Lakeview Dr. Canton, NC 28716 Thank You Matthew Major I know yall get thousands of request and inmates claiming innocence, and each person who are innocent deserve to have organizations like yours willing to fight for them and I give yall so much Thanks and I thank God everyday yall are out there caring enough to help free the innocents. Since discovering firsthand how easily lives and families can be destroyed by Poor Defense attorneys not doing their job . And Prosecutors allowed to do as they please in court

  5. Frankly, it is tragic that you are even considering going to an expensive, unaccredited "law school." It is extremely difficult to get a job with a degree from a real school. If you are going to make the investment of time, money, and tears into law school, it should not be to a place that won't actually enable you to practice law when you graduate.

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