RETALIATION UNLEASHED! The Ever-Expanding Retaliation Claim

Transcription

1 RETALIATION UNLEASHED! The Ever-Expanding Retaliation Claim By Jessie L. Harris, Esq. Williams Kastner & Gibbs, PLLC 601 Union Street, Suite 4100 Seattle, WA (206) & Nicole M. Tedrow, Esq. Associated Industries 1206 N. Lincoln, Suite 200 Spokane, WA (509)

2 I. OVERVIEW For years employers viewed retaliation as an auxiliary or secondary claim and tended to focus their workplace policies on minimizing the risks of substantive discrimination claims arising under Title VII (e.g., sexual harassment, and discrimination based on race, gender, etc.). That view has changed dramatically over the last decade as the result of key Supreme Court decisions that have lowered the bar for proving retaliation and expanded the reach of the claim in general. As a case in point, in 2002 some 27% of all EEOC filings included a retaliation charge; as of 2012 that figure had increased to 38%. 1 In other words, the once thought inferior retaliation claim has come into its own and can pose a trap for weary employers who continue to view retaliation charges as subordinate or less deserving of proactive practices. II. ELEMENTS OF TITLE VII RETALIATION CLAIM Like substantive discrimination claims, a cause of action for retaliation was created by Title VII of the Civil Rights Act of Title VII s anti-retaliation provision prohibits employers from discriminating against an employee because that employee has opposed any practice made an unlawful employment practice by this subchapter, or because he 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). In order to maintain an action for retaliation, a plaintiff must muster the McDonnell Douglas 2 burden-shifting analysis and first make out a prima facie case by showing that he or she: 1) engaged in a protected activity; 2) was subjected to an adverse action by the employer; and 3) a causal link exists between the protected activity and the adverse action. See Tarin v. County of Los Angeles, 123 F.3d 1259, 1264 (9 th Cir. 1997); See also Steiner v. Showboat Operating Co., 25 F.3d 1459, 1465 (9 th Cir. 1994). If the plaintiff establishes a prima facie case, the burden shifts to the defendant to articulate a legitimate nondiscriminatory reason for its decision. Tarin, 123 F.3d at If the defendant articulates a legitimate nondiscriminatory reason, the plaintiff bears the ultimate burden of demonstrating that the reason was mere pretext for a discriminatory motive. Id. Of note, the burden-shifting analysis is inapplicable in cases where the plaintiff can demonstrate retaliation through direct evidence. See Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 121 (1985). III. THE EFFECT OF BURLINGTON 3 In the years following the enactment of Title VII, a split emerged in the federal circuits over the precise test to be applied for purposes of determining what constitutes an adverse employment action. By way of example, the Fifth and Eighth Circuits arguably took the most conservative approach, holding that only ultimate employment decisions such as hiring, firing, or promoting 1 See EEOC Charge Statistics FY 1997 Through FY 2012; 2 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). 3 Burlington Northern & Santa Fe Ry. v. White, 548 U.S. 53 (2006).

3 constitute an adverse employment action. Mattern v. Eastman Kodak Co., 104 F.3d 702 (5 th Cir. 1997); Ledergerber v. Stangler, 122 F.3d 1142 (8 th Cir. 1997). The Third Circuit adopted a more middle-of-the-road test that defined an adverse action as one that materially and adversely affects the terms and conditions of employment. See Robinson v. Pittsburgh, 120 F.3d 1286, 1300 (3 rd Cir. 1997). Under this standard, it was not necessary that the action rise to the level of an ultimate decision such as a discharge or denial of a promotion. The action only needed to be serious and tangible enough to alter an employee s compensation, terms, working conditions or privileges. Id. The Ninth Circuit applied the most employee friendly test of all, defining an adverse action as treatment that is reasonably likely to deter employees from engaging in a protected activity. Ray v. Henderson, 217 F.3d 1234, 1240 (9 th Cir. 2000). The Supreme Court settled the split with its decision in Burlington Northern & Santa Fe Ry.v. White, 548 U.S. 53 (2006) and set forth a standard very similar to the Ninth Circuit s test. In Burlington a female employee who worked as a forklift operator was transferred to the more physically demanding position of track laborer after she complained of gender-based discrimination to company officials. Id. at 58. After exhausting her administrative remedies via the EEOC process, she filed suit claiming, among other things, retaliation under Title VII. On appeal, the Sixth Circuit considered the issue of whether the plaintiff had truly been subjected to an adverse employment action insofar as her assignment to the position of track laborer did not result in any reduction in salary or tangible employment benefits. Although the Sixth Circuit, sitting en banc, found that plaintiff had established an adverse employment action, they differed as to the proper standard to apply. The Supreme Court ultimately affirmed the Sixth Circuit, and in doing so, adopted the more expansive standard. The Supreme Court approached the analysis by pointing out that Title VII s anti-retaliation provision was crafted to prohibit a wide variety of employer conduct that is intended to restrain, or that has the effect of restraining, employees. Id. at 66-67, citing Bill Johnson s Restaurants, Inc. v. NLRB, 461 U.S. 731, 740 (1983). Applying this logic, the Supreme Court clarified that adverse employment actions are not limited to acts directly relating to the workplace and held that post-employment acts (e.g., providing a negative reference, filing a retaliatory lawsuit, etc.) fall within the purview of Title VII s anti-retaliation provision. Id. at 67. The Supreme Court then went on to hold that the proper test for determining whether an employer s action is materially adverse hinges on whether the action would have dissuaded a reasonable worker from making or supporting a charge of discrimination. Id. at 68. This holding effectively lowered the bar and brought the retaliation claim out of the shadows. IV. FURTHER EXPANSION UNDER THOMPSON 4 If Burlington brought retaliation out of the shadows, then surely the decision in Thompson v. North American Stainless, LP, 131 S. Ct. 863 (2011) ushered retaliation into prime time. The plaintiff in Thompson was fired within a matter of weeks after his employer received notice that his fiancée had filed a sex discrimination complaint with the EEOC. Mr. Thompson filed suit against his employer, claiming he was fired in retaliation for his fiancée s EEOC charge. The district court dismissed the case on summary judgment on grounds that Title VII does not permit third party retaliation claims. Id. at 867. The district court relied on the well-established 4 Thompson v. North American Stainless, LP, 131 S. Ct. 863 (2011).

4 precedent that required a retaliation claimant to first show that he or she engaged in a protected activity. And since Mr. Thompson had not personally engaged in protected activity, the district court concluded that he was unable to establish a critical element of a prima facie case. The Court of Appeals for the Sixth Circuit affirmed dismissal on those grounds. 5 In a surprising decision, the Supreme Court unanimously reversed the Sixth Circuit, reasoning that while Mr. Thompson had not personally engaged in a protected activity, he nevertheless experienced the type of harm Title VII s anti-retaliation provision was crafted to prevent. The Supreme Court fell back on its holding in Burlington Northern where it noted the seminal test for a materially adverse employment action is whether the employer s conduct might have dissuaded a reasonable employee from engaging in the protected activity. See Burlington Northern, 548 U.S. at 68. Applying this logic, the Supreme Court concluded that a reasonable employee might be dissuaded from engaging in protected activity if she knew her fiancée would be fired. Thompson, 131 S. Ct. at 868. While the Supreme Court stopped short of identifying a fixed class of relationships that will give rise to a retaliation claim, it attempted to narrow the reach of its decision by noting, we expect 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 Id. Nevertheless, the practical effect of Thompson was to create a new class of plaintiffs who now have standing to maintain a retaliation claim based upon the protected activity of a third party. V. TEMPORAL PROXIMITY AND THE CAUSATION ELEMENT Despite the holdings in Burlington and Thompson, establishing temporal proximity continues to pose a potential hurdle for retaliation claimants. As noted, an employee must establish the critical causation element between his or her protected activity and the adverse employment action. This often turns on whether the protected activity and alleged retaliatory act are close enough in time to establish the causal link necessary to make out a prima facie case. Close temporal proximity alone may be sufficient to satisfy the causation element. Passantino v. Johnson & Johnson Consumer Prod., Inc., 212 F.3d 493, 507 (9 th Cir. 2000); see also Yartzoff v. Thomas, 809 F.2d 1371, 1376 (9th Cir. 1987) (3 weeks deemed sufficient); Miller v. Fairchild Industries, Inc., 885 F.2d 498, 505 (9th Cir. 1989) (2 months deemed sufficient). Thus, without more in the way of circumstantial evidence, a significant time lapse between the protected activity and the adverse employment action may prove fatal to a retaliation claim. See Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 274 (2001) (noting the temporal proximity must be very close ). Thus, despite the apparent expansion of the scope of retaliation claims, the temporal proximity defense remains a viable way to attack causation at the summary judgment phase. VI. SINGLE VS. MIXED-MOTIVE INSTRUCTIONS 5 See the Court of Appeals decision at 567 F.3d 804 (6 th Cir. 2009).

5 In cases where a plaintiff survives summary judgment and proceeds to trial on a Title VII retaliation claim, the employer would be well advised to understand the potential impact of the single versus mixed-motive jury instruction. As explained by the Supreme Court: In [single-motive] cases, the issue is whether either illegal or legal motives, but not both, were the true motives behind the decision In mixed-motive cases, however there is no one true motive behind the decision. Instead, the decision is a result of multiple factors at least one of which is legitimate. Price Waterhouse v. Hopkins, 490 U.S. 228, 260 (1989). Price Waterhouse was a sex discrimination case in which the Supreme Court held that when a plaintiff proves that gender was a motiving factor in an employment decision, the employer can avoid liability by proving by a preponderance of the evidence that it would have made the same decision even if it had not taken plaintiff s gender into account. Id. If the defendant mustered this burden it operated as an affirmative defense or complete bar to recovery. In response to Price Waterhouse, Congress enacted the 1991 Amendments to Title VII s substantive discrimination provisions. The pertinent Amendment provides: On a claim in which an individual proves violation under section 2000e-2(m) of this title and a respondent demonstrates that the respondent would have taken the same action in the absence of the impermissible motivating factor, the court may grant declaratory relief, injunctive relief, and attorney s fees and costs directly attributable only to the pursuit of a claim under section 2000e-2(m). 6 See 42 U.S.C. 2000e-5(B)(i). The effect of the 1991 Amendment was to eviscerate the complete bar to recovery and to allow a plaintiff to obtain injunctive and declaratory relief plus attorney s fees when the plaintiff succeeds in establishing a mixed-motive (e.g., that unlawful discrimination was a motivating factor). Thus, liability will attach even where an employer can show the same decision would have resulted notwithstanding the discriminatory factor. See Dominguez-Curry v. Nevada Transportation Department, 424 F.3d 1027, 1041 (9 th Cir. 2005) (noting the 1991 Amendments overruled the premise that an employer could escape liability under Title VII if it prove it would have made the same decision even absent discriminatory animus.). Not surprisingly, employers tend to favor the single-motive instruction since the passage of the 1991 Amendments, whereas before those Amendments employers favored the mixed-motive instruction which could operate as a complete bar to recovery per Price Waterhouse. 6 It bears noting that section 2000e-2(m) prohibits an employer from engaging in discrimination on the basis of race, color, religion, sex or national origin. The plain language of that section concerns only substantive discrimination and makes no mention of retaliation. See 42 U.S.C. 2000e-2(m). Retaliation is addressed separately in 2000e- 3(a). Using similar logic, the Supreme Court has already decided that the mixed-motive rule per the 1991 Amendments do not apply to age discrimination claims brought under the ADEA. Gross v. FBL Financial Services, Inc., 557 U.S. 167 (2009).

6 What remains unresolved is whether a mixed-motive instruction per the 1991 Amendments applies to Title VII retaliation claims. For example, the First and Seventh Circuits have held that the mixed-motive instruction is not proper for Title VII retaliation cases because the 1991 Amendments refer only to substantive discrimination claims (e.g., discrimination based on race, color, religion, sex and national origin). See Tanca v. Nordberg, 98 F.3d 680, (1 st Cir. 1996); McNutt v. Board of Trustees of the Univ. of Ill., 141 F.3d 706, (7 th Cir. 1998). In these circuits employers defending against Title VII retaliation claims continue to avail themselves of the Price Waterhouse mixed-motive defense which, if proved, continues to operate as a complete bar to recovery. By contrast, the Fifth and Eleventh Circuits have applied the mixed-motive approach per the 1991 Amendments to Title VII retaliation claims. Smith v. Xerox Corp., 602 F.3d 320, 330 (5th Cir. 2010); Pennington v. City of Huntsville, 261 F.3d 1262, 1269 (11 th Cir. 2001). In those circuits, a plaintiff who succeeds in establishing retaliation as a motivating factor may recover declaratory and injunctive relief plus attorney s fees even if the defendant is able to show the same decision would have occurred as a result of non-retaliatory motives. The Ninth Circuit has yet to issue a definitive ruling on the matter, although in at least one case the Court indicated, albeit in the context of summary judgment, that a mixed-motive instruction may lie in a retaliation case per the 1991 Amendments. See Stegall v. Citadel Broad. Co., 350 F.3d 1061, (9th Cir. 2003). A. The Supreme Court Will Settle the Split In January 2013, the Supreme Court granted certiorari in a Fifth Circuit case, Nassar v. Univ. of Texas Southwestern Medical Center, 674 F.3d 448 (5 th Cir. 2012), cert. granted, 81 U.S.L.W (U.S. Jan. 18, 2013)( No ), where it will determine whether the 1991 Amendment allowing mixed-motive instructions in substantive discrimination cases is also applicable to Title VII retaliation claims. The facts of Nasser are simple. A physician brought suit against the University of Texas Southwestern ( UTSW ) claiming, inter alia, that it retaliated against him by blocking a job opportunity with an affiliated hospital after he complained of discrimination by his supervisor. The Court of Appeals upheld the district court s grant of a mixed-motive instruction (per the 1991 Amendments) on the retaliation claim. Id. at 454. If the Supreme Court upholds the Court of Appeal s decision in Nassar, it would mean the mixed-motive instruction as modified by the 1991 Amendments would apply to retaliation claim, e.g., employers will no longer be able to avoid liability by showing it would have made the same decision absent a retaliatory motive. On the other hand, if the Supreme Court reverses the Fifth Circuit, it would affirm mixed-motive as complete defense to Title VII retaliation claims per the Price Waterhouse rule. B. Retaliation under WLAD (Substantial Factor Test) The elements of a prima facie case for retaliation under WLAD (RCW ) are basically identical to a Title VII retaliation claim in that the plaintiff must establish that he or she: 1) engaged in a statutorily protected activity; 2) an adverse employment action was taken; and 3) a causal link exists between the protected activity and the alleged retaliatory action. Delahunty v.

7 Cahoon, 66 Wn. App. 829, 839 (1992). The same burden shifting analysis also generally applies for purpose of summary judgment unless the plaintiff can proffer direct evidence of retaliation. 7 If a plaintiff survives summary judgment on a WLAD retaliation claim, the standard of proof at trial will hinge on the substantial factor test. In other words, the plaintiff must demonstrate that purported retaliation was a substantial factor behind the adverse employment action. Allison v. Housing Authority of Seattle, 118 Wn.2d 628 (2002); see also, WPI (6 th ed. 2012). 7 Washington s anti-discrimination law closely parallels Title VII of the United States Civil Rights Act of 1964, 42 U.S.C. 2000e et seq. Courts therefore look to interpretations of federal law when construing RCW Selberg v. United Pac. Ins. Co., 45 Wn. App. 469, 472, 726 P.2d 468, review denied, 107 Wn.2d 1017 (1986).