Title VII Employer Retaliation Claims are Harder to Prove Than You Might Think!

December 8, 2011

Let’s say your boss is a real, well, you know . . .   You decide to go and complain to your HR representative about his (or her) behavior, and the next thing you know, your request for vacation time is denied, or you receive a negative employee evaluation.  It sounds like a good case of employer retaliation, right?  Maybe.  But then again, maybe not.  As many South Florida employment attorneys know, Title VII employer retaliation claims are harder to prove than you might think.

First, keep in mind that Title VII is generally designed to prohibit discrimination in the workplace on the basis of race, sex (and pregnancy), color, religion, or national origin.  See Burlington Northern and Santa Fe Ry. Co. v. White, 548 U.S. 53, 61-62 (2006) (citing 42 U.S.C. sec. 2000e-2(a)).   That means that as a plaintiff in an employment discrimination action, you’ll generally have the burden of showing that you were discriminated against because you belong to one of the protected classes.  Title VII does not create “a general civility code for the American workplace.”  Burlington Northern, 548 U.S. at 68 (citations omitted).  Generally speaking, Title VII does not afford a cause of action for “petty slights,” “personality conflicts,” “snubbing,” or other actions which might fall into the category of “ordinary tribulations of the workplace, such as the sporadic use of abusive language, gender-related jokes, and occasional teasing.”  Burlington Northern, 548 U.S. at 68 (citations omitted).

Title VII’s anti-retaliation provision provides,

It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment … because he 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.

Burlington Northern, 548 U.S. at 62 (citing 42 U.S.C. sec. 2000e-3(a)).  This section is to be construed broadly.  See Thompson v. North American Stainless, LP, 131 S.Ct. 863, 868 (noting that in Burlington Northern, “we held that Title VII’s antiretaliation provision must be construed to cover a broad range of employer conduct.”) (citing Burlington Northern, 548 U.S. at 62).

Notwithstanding the broad construction to be afforded the anti-retaliation section, the Eleventh Circuit still requires a plaintiff in an anti-retaliation action to show that (1) he or she was engaged in statutorily protected expression; (2) he or she suffered an adverse employment action; and (3) there was some causal relationship between the two events.  See Burgos v. Napolitano, 330 Fed. App’x. 187, 189 (11th Cir. 2009) (citing Lucas v. W.W. Grainger, Inc., 257 F.3d 1249, 1260-61 (11th Cir. 2001); Holifield v. Reno, 115 F.3d 1555, 1566 (11th Cir. 1997)).   Filing an EEOC claim,  opposing a discriminatory practice, or participating in Title VII enforcement proceedings have been held to constitute expressions protected by Title VII.  See Burgos, 330 Fed. App’x at 189; Valentine v. Legendary Marine FWB, Inc., No. 3:09cv334/MCR/EMT, 2010 WL 1687738, *4 (N.D. Fla. April 26, 2010).  As illogical as it may sound, merely enjoying a benefit conferred by Title VII, or making a general complaint of discrimination is not legally sufficient for claims of employer retaliation.  See Valentine, 2010 WL 1687738 at *3-*4 (holding that plaintiff’s generalized claim that she was discriminated against by being terminated while on FMLA maternity leave was legally insufficient for claim of retaliation because exercise of right to FMLA maternity leave “is simply not the same as opposing a discriminatory practice or participating in an enforcement proceeding under Title VII.”) (citing Marshall v. Mayor and Alderman of City of Savannah, Ga., No. 09-13444, 2010 WL 537852, at *8-9 (11th Cir. Feb.17, 2010) (unpub.); Coon v. Ga. Pac. Corp., 829 F.2d 1563, 1568-69 (11th Cir. 1987)).

The Eleventh Circuit construes “the causal-relationship prong” broadly, meaning that “a plaintiff simply has to demonstrate that the protected activity and the adverse action are not completely unrelated.”  Burgos, 330 Fed. App’x at 190 (citing Higdon v. Jackson, 393 F.3d 1211, 1220 (11th Cir. 2004)).  “A plaintiff satisfies this element if she provides sufficient evidence that her employer had knowledge of the protected expression and “that there was a close temporal proximity between this awareness and the adverse action.”  Burgos, 330 Fed. App’x at 190 (quoting Higdon, 393 F.3d at 1220).

Perhaps the biggest hurdle a plaintiff may face in a retaliation case is showing a close temporal proximity between the Title VII protected activity and the retaliation.  Although a time difference of one month has been accepted, time spans of three, four, and six months have been found to be insufficient as a matter of law to establish a temporal nexus.  See Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001) (citing Richmond v. ONEOK, 120 F.3d 205, 209 (10th Cir. 1997) (3-month period insufficient); Hughes v. Derwinski, 967 F.2d 1168, 1174-75 (7th Cir. 1992) (4-month period insufficient); Burgos, 330 Fed. App’x at 190-191 (holding that six month delay between filing of EEOC claim and the adverse employment action constituted “a substantial delay” and “without more, is insufficient to support an inference of causation.”); Higdon, 393 F.3d at 1220 (holding that, by itself, three months was insufficient to prove causation, but noting that the Court previously held that one month is “not too protracted.”) (citing Donnellon v. Fruehauf Corp., 794 F.2d 598, 601 (11th Cir. 1986)).

What does all of this mean for you, the employee who complained about your boss, and then found yourself on the receiving end of some adverse employment action?  Basically, you’ll have to think about three important questions: (1) At the time the adverse employment action occurred, were you participating in some form of expression that is protected by Title VII, such as making and EEOC claim or participating in EEOC enforcement proceedings? (2) Is there a close enough temporal proximity between your Title VII protected activity, and the adverse employment action?  (3) Were you truly discriminated against because you are a member of a protected class, or were you perhaps singled out because of an unfortunate personality conflict with your boss?



Filed under Employment Rights, Retaliation and Whistleblower Laws, United States Court of Appeals for the Eleventh Circuit Tagged with , ,

Florida has Statutes Governing Employment Issues, Too

December 1, 2011

Most employment law attorneys are well familiar with the Federal statutes governing employment issues, whether they be part of Title VII or the Fair Labor Standards Act.  But I bet there are some South Florida employment attorneys out there that may not be very familiar with Florida’s statutes governing employment issues.  I thought I’d take a moment to mention a few of them here.

Florida section 448.01, Entitled “Legal day’s work; extra pay,” provides that a day’s work shall consist of ten hours.  There are few cases interpreting this section, notwithstanding the fact that it was enacted in 1874.  See Posely v. Eckerd Corp., 433 F.Supp.2d 1287 (S.D. Fla. 2006) (noting the lack of authority construing the section, and finding the section to be unconstitutionally vague).

Florida section 448.07, entitled “Wage rate discrimination based on sex prohibited,” basically provides that employers cannot discriminate in pay based on sex.  However, it is important to note that subsection (4) provides that the section will not apply to any “employer, labor organization or member thereof, or employee whose employer is subject to the federal Fair Labor Standards Act of 1938 . . .”   In the only two decisions reported under the section, the courts found that the employees actions were governed by or preempted by Federal law.  See Saunders v. Hunter, 980 F. Supp. 1236 (M.D. Fla. 1997) (finding that the employee’s action was barred by section 448.07, and that her exclusive remedy was under the FLSA based on the express language of section 448.07);  Henderson v. Hovnanian Enterps., Inc., 884 F. Supp. 499 (S.D. Fla. 1995) (preemption).

Florida section 448.075, entitled “Employment discrimination on basis of sickle-cell trait prohibited,” provides that no “person, firm, corporation, unincorporated association, state agency, unit of local government, or any public or private entity shall deny or refuse employment to any person or discharge any person from employment solely because such person has the sickle-cell trait.”  There are no reported cases for this section.

Florida section 448.09, entitled “Unauthorized aliens; employment prohibited,” provides that it’s unlawful to recruit or hire illegal aliens.  Subsection (2) provides that employers violating this section shall be subject to a civil fine of $500.  Further violations of the statute expose an employer to being found guilty of a second degree misdemeanor.  Although this section was enacted in 1977, there are no decisions construing this section.  I am unable to determine if any employer has ever been criminally prosecuted under this section.

Florida section 448.102, entitled, “Prohibitions,” is also known as Florida’s Whistle Blower’s Act.  This section generally  “provides employees a cause of action against employers who wrongfully discharge them for disclosing to a government agency that the employer has violated the law or for objecting to or refusing to participate in the employer’s illegal practices.”  See Vanacore v. UNC Ardco, Inc., 692 So. 2d 892, 893 (Fla. 4th DCA 1997).  According to the Eleventh Circuit, Florida’s Whistle Blower’s Act is to be construed in conformity with Title VII.  See Sierminski v. Transouth Finan. Corp., 216 F.3d 945, 950 (11th Cir. 2000).  Florida’s 4th DCA has held that the provisions of Florida’s Whistle Blower’s Act overlap with Florida’s Civil Rights Act of 1992.  See Rivera v. Torfino Enterps., 914 So. 2d 1087 (Fla. 4th DCA 2005).

Florida section 448.103, entitled “Employee’s remedy; relief,” provides a civil cause of action for a violation of section 448.102, Florida’s Whistle Blower’s Act.  Pursuant to subsection (1)(a), any civil action must be commenced “within 2 years after discovering that the alleged retaliatory personnel action was taken, or within 4 years after the personnel action was taken, whichever is earlier.”

Filed under Employment Discrimination, Employment Rights, Florida Fourth District Court of Appeal, Retaliation and Whistleblower Laws, United States Court of Appeals for the Eleventh Circuit Tagged with , ,

Employment Help for Florida’s Convicted Felons

October 13, 2011

If you or someone you know is a convicted felon, you know how hard it can be to get a job.  Well, lucky for you there is a job fair being held in Riviera Beach today, October 13, 2011.  According to the report on the website for CBS 12, Riviera Beach Mayor Thomas Masters states that major employers like Marriott will be there and are committed to hiring people with a criminal past.  I have previously posted on the issue of reintegrating convicted felons into the workforce.  It’s great to see that efforts are being made by local officials.

For those convicted felons who aren’t able to attend the job fair and still need help resolving employment issues, you may want to look into getting your civil rights restored.  Not only will restoring your civil rights put you back on the path to being a productive, valued member of your community, but it will increase your employment opportunities as well.   To restore your civil rights, you’ll basically need to file the correct application and supporting documents with Florida’s Office of Executive Clemency.  In order to be eligible for restoration, you’ll need to have completed all aspects of your criminal sentence, including all conditions of probation and restitution, and be crime-free and arrest-free for a period of either 5 or 7 years, depending on the seriousness of your offense.  Although some applications will require a hearing, others do not.  In addition, while not strictly required, submitting letters in support of your application is strongly encouraged.  Letters can be drafted by friends, family, members of community organizations to which you belong, co-workers or employers, or members of your religious group.  For more information on the process, you should review the information on the website of Florida’s Office of Executive Clemency.  Additional information can also be found with the ACLU by clicking here.

Filed under Employment Rights Tagged with , , ,

The EEOC Takes Aggressive Stance by Filing Four Discrimination Suits in Two Days

August 30, 2011

Attorneys who practice in the area of employment discrimination may be interested to know that the EEOC homepage shows that the Commission has filed four discrimination suits in the last two days.  In the cases, the EEOC asserts claims of religious discrimination, disability discrimination, and employer retaliation against various companies, including our country’s second largest automaker, Ford Motor Company.

In the case against SITA Information Networking Computing USA, Inc., an Atlanta air transport communications company allegedly discriminated against an employee by rescinding an offer of employment after learning that the newly hired employee would need accommodations because of cancer surgery.  As noted by the EEOC, shortly after accepting the offer of employment, the employee learned of her cancer diagnosis, and requested to have her start date moved.  The employee also requested permission to work part-time for the first two weeks.  In response, the employer rescinded the employment  offer.  According to Robert Dawkins, regional attorney for the EEOC’s Atlanta District Office, the “suit is being filed to ensure that employers understand that they have an obligation, short of incurring undue hardship, to provide a reasonable accommodation to employees.”

In the case against The Patty Tipton Company, a Lexington, Kentucky, Staffing Agency, the EEOC asserts that the agency refused to hire a job applicant because she insisted on wearing a long skirt, and refused to wear pants, for religious reasons.  The woman applied for a temporary position at the World Equestrian Games, and was denied the position after requesting her religious accommodation.  She was subsequently hired by another company that had no problem with her request for the religious accommodation at the World Equestrian Games.

In its case against Ford Motor Company, the EEOC alleges that instead of allowing an employee to participate in its telecommuting program as a reasonable accommodation for her medical condition, Ford began to criticize the employee’s performance, placed her on a “performance enhancement plan,” and then discharged her only months after she complained about being denied an accommodation.  According to the EEOC, “[f]ailing  to offer a reasonable accommodation to an employee and then discharging her under these circumstances is a clear violation of the ADA.”

Finally, the EEOC sued Pine View Living, Inc., an assisted living facility in Milwaukee, Wisconsin, for retaliation.  According to the EEOC, a resident assistant filed a complaint with the facility, stating that she had been discriminated against on the basis of race.  She was thereafter fired.  At the time it filed the case, the EEOC stated that “Federal law protects the right of employees to complain when they believe they have been the victims of employment discrimination . . . Here, the EEOC contends that Ms. Anderson was doing what she had a right to do, but Pine View chose to punish her rather than to fix the underlying problem.”

Filed under Disability Discrimination, Employment Rights, Religious Discrimination, Retaliation and Whistleblower Laws, Unlawful or Wrongful Termination Tagged with , , ,

The NFL’s 10 Year Labor Agreement: The Most Socially Progressive Labor Agreement Ever?

August 11, 2011

I’ll admit, I was not one many people who cared about when the NFL lockout would end.  I hardly ever watch pro football, except for the Superbowl.  Even then, I’d rather see some of the funny ads rather than the game itself.  But a recent report that I heard on NPR caught my attention.  Could it be that the NFL and its players have entered what could be the most socially progressive labor agreement ever?

Sure, the owners got what they always want, more money.  But the players may have scored the most points overall.  They gained greater workplace safety in the form of fewer practices and better healthcare, and player’s salaries will become less disproportionate.  The evening out of salaries is the result of several factors: a new minimum salary, the top draft picks being paid less, and the fact that thriftier teams in smaller markets will be required to maintain a payroll that is at least 89% of the bigger teams.  Another interesting point: the NFL may become the first professional sports league to allow for eventual random blood testing of players for HGH, or human growth hormone.  One report indicates that the HGH testing provision is not yet finalized.

Overall, it sounds like the workers scored more points than the employers!

For a more detailed discussion of the finer points of the labor agreement, click here.

 

 

 

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Filed under Employment Rights Tagged with , , , ,

EEOC Taking Public Comment on Issue of Reintegration of People With Criminal Records into the Workplace

August 9, 2011

On July 26, 2011, the EEOC issued an interesting press release titled “Striking the Balance Between Workplace Fairness and Workplace Safety.”  According to the release, a meeting was held at the EEOC headquarters to examine current legal standards and hiring practices, and to identify ways in which arrest records are being used by employers.  At the meeting, several individuals discussed their success with various programs designed to help those with criminal records reenter the workforce.

The most interesting aspect of the release is the discussion of the collateral consequences suffered by communities, employers, and individuals as a result of arbitrary rules.  Can you believe that some states train people while in prison for careers in barbering and cosmetology, but then bar them upon release from getting these very licenses because of their conviction records?!

The EEOC is going to be taking written comments from the public on this issue.  Those who wish to comment may mail their comments to Commission Meeting, EEOC Executive Officer, 131 M Street, N.E., Washington, D.C. 20507.  In the alternative, people may email comments to Commissionmeetingcomments@eeoc.gov.  All comments received will be made available to members of the Commission and to Commission staff working on the matters discussed at the meetings.  Comments will also be placed in the EEOC library for public review.

Perhaps your comments can help mold future policy!

Filed under Employment Rights Tagged with , , , , , ,

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