Atlanta Employment Lawyer Blog

Recently a federal jury awarded a pathologist a $7.6 million retaliation verdict. In Renta v. Cook County, a jury determined that a health agency had retaliated against a physician - Dr. Vivian Renta - after she complained about substandard hospital policies and the quality of care patients were receiving. The verdict represents damages for back pay, front pay, lost pension benefits and pain and suffering.

If you believe you have suffered an adverse employment action as the result of complaining about discrimination – or participated as a witness is someone else’s complaint of discrimination, you may have a claim for retaliation. If you feel you have been treated unfairly at work, consulting with a knowledgeable Georgia employment retaliation attorney is an important first step to determining your rights and evaluating whether you may have a claim.

In Renta, the physician sued after she was terminated and was declared “incompetent,” a virtual “death sentence” for physicians seeking to obtain a new job. As stated by a representative, “An adverse employment decision that takes away a doctor’s right to practice and their privileges at the hospital is the equivalent of the professional death sentence.”

Just what constitutes retaliation may differ in each employment situation. Although in some situations retaliation consists of termination, in other cases, it may be adverse actions such as being placed on undesirable shifts or assigned to a “worse” location.

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A recent case determined that a fired federal employee could bring a claim of retaliation against a federal employer. The decision was the result of the court’s review of Diggs v. HUD, a “mixed case” based on both retaliation and employment discrimination. Although the court determined it lacked proper jurisdiction to decide this case, it was significant in determining that Title VII prohibits retaliation in federal employment.

A mixed case is one that includes both a claim of some form of employment discrimination – here sex discrimination – and an adverse action. In the present case, the adverse action was Diggs’ termination. If you believe you have been subject to any form of discrimination or have been retaliated against after complaining of discrimination, it is important to speak to a knowledgeable Atlanta employment discrimination lawyer to evaluate your claim and determine your next steps.

Here, an employee of HUD, Diggs, was terminated based on misconduct charges including the following: 1) Rude, disruptive, aggressive or intimidating behavior; and 2) Misrepresentation. As a defense to the misconduct charges filed against Diggs, Diggs claimed that she was actually fired because she had previously filed a sex bias claim. A sex bias claim is based on the assertion that an employer has discriminated against you “because of” your sex. Title VII prohibits taking adverse actions such as termination, failure to promote and suspensions because of your gender. Additionally Title VII prohibits retaliation if you complain about discrimination. This is intended to protect employees so that they are not afraid of complaining about work place discrimination, or helping others who file complaints. Prohibited retaliation includes actions such as being demoted, terminated, moved to a worse location or given worse hours. However, the Supreme Court has not expressly ruled on whether the ban on retaliation applies to public-sector employers.

In evaluating whether Title VII bans retaliation in federal employment as in private employment, the Federal Circuit determined that when Congress broadly drafted provisions preventing ‘any discrimination’ it intended to bar the government from “engaging in, among other practices applicable to employers, retaliation against an employee who complains of illegal discrimination.”

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In a recent case interpreting just what constitutes actionable retaliation as set forth in Thompson v. North am. Stainless LP, the U.S. District Court for the District of Columbia concluded that threats made by a Muslim firefighter’s supervisors could also be intended as a serious threat to the firefighter’s co-worker/close friend and as a result, constitute a viable claim for retaliation under Title VII of the 1964 Civil Rights Act.

Title VII and other employment discrimination laws prohibit retaliation in the workplace. If you experience retaliation in the workplace, you may be entitled to the same remedies as you have in any other discrimination case. Retaliation doesn’t only mean that you have been discharged for making a complaint. The Supreme Court has defined retaliation broadly including any actions or conduct by an employer that would deter reasonable people from pursuing their rights. This has been extended to include actions by your employer not only against you but also a family or close friend.

In Ali v. District of Columbia, Ali and a fellow firefighter, Craig, were late in appearing for a drill. Ali explained that they were late because they were praying. The two men were then ordered to prepare special reports explaining their slow response time. Craig was told he had to make a choice between “his job and his religion.” Ali subsequently complained, calling the statement “out of line.” Ali was also told that if he pursued his complaint, members of the fire company, including Craig, would be disciplined. Ali then agreed to withdraw his religious discrimination complaint in order to avoid Craig facing termination or discipline.

A few months later, the department’s diversity/EEO program manager concluded the supervisor required corrective action, noting that while unrealized threats may not constitute an adverse action in Title VII discrimination, they can be materially adverse for Title VII retaliation purposes. Here, the fact that Ali withdrew his report because he had no desire to have Craig disciplined, was sufficient to state a claim for retaliation. The court noted that although differences existed between this case and Thompson, the connection between the threat and the protected activity was obvious. As a result, Ali could maintain a claim for retaliation.

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In a recent Second Circuit Court of Appeals decision, the court determined that a trial court had erred when it issued jury instructions that too narrowly defined what retaliation means. In Millea v. Metro-North R.R. Co., a railroad employee – Christopher Millea - brought a retaliation claim under the Family and Medical Leave Act (FMLA). When the court instructed the jury concerning how to make its decision about the case – it failed to instruct them that retaliation in the form of a “materially adverse employment action” includes “an employer’s action that is likely to dissuade a worker …from exercising his legal rights.”

Here, Millea brought a case for retaliation based on his attempts to exercise his rights under the FMLA. Millea had fought as a U.S. Marine and suffered severe post-traumatic stress and panic attacks. During 2005, he applied for leave under the FMLA and was granted 60 days of leave for 2006. Millea was supposed to notify his supervisor directly if he needed to take leave that was unforeseeable.

Unfortunately, in two instances Millea suffered attacks and took leave, but did not provide direct notice. As a result, Millea was docked pay and had a letter of reprimand placed in his file. He was later transferred to a lower paying position. Millea then filed an FMLA lawsuit claiming that the railroad interfered with his ability to take leave, and that the letter of reprimand qualified as retaliation.

At trial Millea requested the jury be instructed that retaliation includes actions likely to dissuade a worker from making or supporting a charge of discrimination. The Court instead simply told the jury that retaliation is “a materially adverse action.” The Second Circuit determined this definition was too narrow, and may have prejudiced Millea right to recover for retaliation. The court also noted that an employer’s formal reprimand is more than just a “petty slight,” and can affect an employee, leading him to fear for his job.

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Under Federal law, retaliating against an employee for complaining of discrimination – or being a witness in another’s claim of employment discrimination – is prohibited. A recent case examined just how long between the time an employee complains about an action being discriminatory and when negative consequences occur supports a claim of retaliation.

In Benuzzi v. Board of Educ. of Chicago, a school custodian testified in a deposition concerning her claims of gender discrimination. According to court documents, the following day the principal of the school where she worked issued a “sweeping Notice of Disciplinary Action citing petty misdeeds that allegedly occurred months ago,” along with a memorandum restricting her access to the school.

Title VII and other discrimination laws prohibit retaliation in the workplace. Retaliation doesn’t only include being fired for making a complaint. It also includes almost any negative action by your employer against you, and in some cases, a family member or friend. Many times retaliation cases are easier to win than discrimination cases – you must simply show that you reasonably believed you were discriminated against and that you were then subjected to an adverse action.

The Seventh Circuit Court of Appeals determined that although a two month time span might not support a retaliation claim, the incredibly short period of time – just one day - between the deposition and the disciplinary action could give rise to the inference that the two events were linked, and as a result support a claim of retaliation.

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Just a few months ago the Supreme Court ruled that certain people who are in “close relation” to a protected party may bring claims for retaliation if they suffer negative work consequences. A protected party is someone who is protected from employment discrimination by Title VII based on their race, color, sex, national origin and religion. Parties are also protected from disability discrimination and age discrimination.

Although the Supreme Court didn’t define exactly the people included in the “fixed class of relationships” who may be able to bring a claim for retaliation, or what actions are protected, the opinion stated, “firing a close family member will almost always” enjoy such protection.

In one of the first cases looking at this rule, the 5th Circuit Court of Appeals - which includes Louisiana, Mississippi and Texas - determined that a son may be able to maintain a claim for retaliation after he was transferred to a less desirable position. The transfer occurred shortly after his father filed a complaint for race discrimination against their mutual employer.

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Imagine if your significant other was being discriminated at work and filed a complaint of harassment against your mutual employer. In response, the company fires you. Can you sue?

A recent Supreme Court decision says – yes, in most situations. In Thompson v. North American Stainless, a man – Eric Thompson - was fired after his fiancée filed a gender discrimination complaint with the EEOC. Thompson then filed a third party claim for retaliation against the company.

Although his claim was initially rejected, the Supreme Court overturned this decision, finding both that firing Thompson was a violation of federal law and that he could bring a claim against the company. The court determined that in those situations where you have a “close relationship” with a co-worker, and complain of discrimination, that co-worker might be protected from retaliation as well. The court did not specifically say who fits within this protected group, but suggested that close family members would likely be included, but “mere acquaintances” might not.

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Many times people worry if they complain to their boss or supervisor about harassment, they may be retaliated against. In order to protect workers and encourage reporting, federal law makes it illegal to “retaliate” against employees who complain about discriminatory conduct. Retaliation includes negative employment actions such as firing, but also less obvious actions such as changing your work hours to a worse schedule, not promoting you, or assigning you to a different or more inconvenient location.

If you believe your employer has retaliated against you after complaining about discrimination or harassment, you may be able to bring a lawsuit for both the underlying action and retaliation. In fact, even if you’re not able to prove discrimination, you may still be able to win a claim for retaliation as long as you reasonably believed you were discriminated against.

A recent Oregon case found that the actions of a company firing a gay man two days after he complained of verbal abuse and harassment could be considered retaliation under federal law and should be decided by a jury. The court also found that he could bring a state case for harassment and sexual orientation discrimination.

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A recent case determined that an employer’s varying rationale for terminating a manager showed “pretext” sufficient to withstand a motion for summary judgment.

In Eades v. Brookdale Senior Living Inc., a 42 –year-old man, David Eades - was fired from his job at a senior living center. Eades subsequently filed a lawsuit alleging violations of the Age Discrimination in Employment Act (ADEA) and retaliation. A federal trial court granted summary judgment against him, and he appealed the claim of retaliation.

Title VII and other discrimination laws prohibit retaliation in the workplace. If you experience retaliation in the workplace, you are entitled to the same remedies as you have in an analogous discrimination case. It is important to note though, retaliation does not mean any type of retaliatory conduct by your employer. Retaliation means you complained about discriminatory conduct in the workplace and you were retaliated against as a result.

Here, the company presented a variety of reasons for terminating Eades including that Eades stated he could no longer work at the company and requested a severance package, that he was fired for performance problems, that he kept a severance package from a former employer, and that he rejected the severance package he was offered.

Although the company’s explanation may or may not lead to an ultimate conclusion that it retaliated against Eades, as noted by Judge John R. Gibson, “Shifting justifications over time call the credibility of those justifications into question.” As a result, the alternating excuses behind Eades termination created a genuine issue of material fact sufficient to preclude summary judgment.”

The bottom line – making up various excuses for adverse employment actions may be a red flag that your employer has acted inappropriately and violated anti-discrimination and retaliation laws.

Continue reading "Inconsistent Reasons For Firing Constitute Pretext" »

In order to ensure that employees are not scared to complain about work place discrimination, federal law, including Title VII and other discrimination laws, prohibit retaliation. Not all retaliatory actions are covered, but if you are the victim of any negative action as the result of making a complaint or participating as a witness in someone else’s discrimination case, you may be able to file a retaliation claim.

In a recent case, the U.S. Court of Appeals for the District of Columbia Circuit determined that a management analyst for the Secret Service could maintain her action for retaliation against the Department of Homeland Security.

In Mogenhan v. Napolitano, a woman who suffered severe migraines filed a discrimination complaint asserting that she received lower employment rating scores based on her sex and disability. Within 20 days of her filing her complaint with the EEOC, Mogenhan’s supervisor, John Machado, placed the complaint on the Secret Service intranet so that everyone could – and did - access the document. He also increased Mogenhan’s workload to five or six times that of other employees. He explained to her that it was to “keep [her] too busy to file complaints.”

The court determined that Mogenhan did not have a claim for disability discrimination, however it held that the actions of Mogenhan’s supervisor could constitute “retaliation.”

Here, the court reasoned that a reasonable jury could find that posting an EEO complaint where everyone could see it could “chill a reasonable employee from further protected activity.” Additionally, the court held that reasonable employees might be dissuaded from filing discrimination complaints if they thought an employer would “retaliate by burying them in work.” Citing with favor Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 98 FEP Cases 385 (2006), the court noted that an employee need only establish a material adverse action to sustain an action for retaliation. Here, the allegations met this burden.

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At the end of its 2009-2010 term, the U.S. Supreme Court agreed to review the circumstances under which a third party may bring an action for retaliation. Specifically, the Court has agreed to review whether a worker may bring a suit for retaliation based on his fiancée’s filing of a sex discrimination claim against their mutual employer.

In Thompson v. N. Am. Stainless LP, an employee, Eric Thomson, was terminated three weeks after the company became aware of his fiancée’s sex discrimination claim against them.

Title VII prohibits retaliation as the result of a complaint about certain types of discrimination in the workplace, either directed at you or a fellow employee. Retaliation includes not only being fired, but also almost any negative action by your employer against you in response to a complaint about discrimination or acting as a witness in someone else’s case.

In Thompson, the Sixth Circuit determined that the employee’s status as the fiancé of an individual who filed a discrimination charge was not sufficient to pursue a claim of retaliation because he had not personally engaged in a protected activity.

Although the Justice Department recommended that the court deny review, the Supreme Court accepted the case and will hear oral argument when the new term begins.

In recent years, the Supreme Court has ruled favorably on retaliation claims, finding that an employer may be liable under Title VII for actions that would dissuade a reasonable employee from making or assisting with a discrimination complaint. See Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53 (2006).

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What if what looks like a standard layoff is really hiding an illegal act, such as retaliation, against an employee? Retaliation may be hard to pin down, but it may be actionable if all of the facts line up. Basically, a retaliatory firing is one that occurs because the employee has complained of discrimination or certain other illegal actions by the employer, or because the employee has supported a fellow worker who has made such a complaint.

The complaint can be with a federal or state agency or within the company itself.
Most retaliatory acts fall short of actual firing, but, with the current economy, there may be more pressure on employers to lay people off, which usually means that the perceived weakest links will be cut first. So someone who is being retaliated against in subtle ways in the work place can suddenly be on the cutting room floor, a victim of a retaliatory act that can made to look like a bona fide business decision.

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It has been a good Supreme Court term for employees. In a recent post, we wrote about the Supreme Court’s decision in CBOCS West, Inc. v. Humphries, in which the Court held that 42 U.S.C. § 1981 (Section 1981) encompasses retaliation claims even though the text of the statute contains no reference to retaliation. In today’s post, we discuss another retaliation decision by the Supreme Court, Gomez-Perez v. Potter, in which the Court held that under the Age Discrimination in Employment Act (ADEA), a federal employee who is a victim of retaliation in response to the filing of a complaint of age discrimination may assert a retaliation claim under the federal-sector provision of the ADEA.

In the case, Myrna Gomez-Perez was employed by the United States Postal Service (USPS) and was 45 years old at the time when she requested a job transfer. When her supervisor rejected her request for a transfer she filed an internal age discrimination complaint, alleging that the denial of her transfer request was based on her age and therefore discriminatory. Ms. Gomez-Perez claimed that in response to her complaint, she was retaliated against by the USPS in various ways, including groundless complaints about her work and a significant reduction in her work hours.

Continue reading "Supreme Court Wrap-Up II: Court Finds Implied Claim of Retaliation in Age Discrimination Act" »

The United States Supreme Court has recently issued a number of very employee-friendly employment discrimination decisions. In this post and our next few posts, we will discuss these important employment discrimination decisions.

In the first case, CBOCS West, Inc. v. Humphries, the Court addressed the issue of whether 42 U.S.C. § 1981 (Section 1981) permits actions for retaliatory discharge. Section 1981 is a Civil War-era federal civil rights law that gives “all persons within the jurisdiction of the United States . . . the same right . . . to make and enforce contracts . . . as is enjoyed by white citizens.” Plaintiffs often choose to file race discrimination claims under Section 1981 in addition to Title VII claims because there is no requirement to first file a charge of discrimination with the EEOC, Section 1981’s statue of limitations is much longer than Title VII’s 180-day limitations period, and Section 1981 has no cap on damages. However, unlike Title VII, Section 1981 does not contain language prohibiting retaliation, and many courts have therefore held that retaliation claims are not available under the statute.

In the case, Hedrick Humphries was an African-American manager of a Cracker Barrel restaurant who claimed he was discharged because of his race and because he had complained that another African-American employee had been discriminated against because of his race. Accordingly, he brought suit under both Title VII and Section 1981. The lower court dismissed Humphries’ Title VII claim on procedural grounds and granted Cracker Barrel’s motion for summary judgment on Humphries’ Section 1981 claim, holding that retaliation claims are not available under the statute.

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We just received a good result from the Eleventh Circuit Court of Appeals (the federal appeals court for the states of Georgia, Florida and Alabama) in a race discrimination and retaliation case and, at the risk of seeming immodest, we’d like to share it with you. It’s a very employee-friendly decision on the issue of what is an adverse action under the discrimination laws, and the court held that when a company makes a discriminatory decision that it later corrects, the employer’s after-the-fact corrective action does not cure the initially discriminatory act.

In the case, Crawford v. Carroll, our client, Jacquelyn Crawford, is an African American female who was employed at Georgia State University in various capacities in its human resources department. Her dispute with GSU began with a disciplinary action she received for allegedly violating the school’s bereavement leave policy. When she complained about this discipline, she claimed she was subjected to retaliation by her Caucasian supervisor in the form of unreasonable job demands and overly critical scrutiny of her work.

The dispute then escalated when Crawford was denied a promotion to a position that was posted several times during a two-year period even though several managers believed she was the most qualified applicant for the position. During this period, Crawford’s Caucasian supervisors issued her a negative performance review, which made her ineligible for a merit pay increase that she was scheduled to receive in October 2002. In response, Crawford filed an internal complaint contending that the poor performance review and resulting disqualification for the merit pay increase were racially discriminatory and retaliatory.

While her internal complaint was pending, the position that Crawford had been denied was posted for a third time. This time, Crawford was not even selected for an interview, and GSU recommended that a Caucasian male be awarded the position.

Continue reading "Discriminatory Denial of Pay Raise Cannot be Cured by Later Raise" »