RETALIATION, SPOUSES, AND CATS

News broke last week that retaliation against employees spiked last year.  So, FEDSMILL.com thought it might be a good time to remind everyone what actions are considered retaliation and the options for dealing with it.

First, the News.

The Ethics Resource Center just published the 2011 National Business Ethics Survey®.  Our favorite table was the one which listed the more common acts that are considered to be retaliation.  When you couple it with what EEOC cites as retaliatory acts and a few other well-respected authorities on the subject, here is what you get.  (There is no exhaustive list of retaliatory acts.)

• Denied a promotion, award, or raise,
• Denied some tangible job benefits such as leave, AWS or telework,
• Discipline,
• Undesirable change in hours of work or work assigned,
• Undesirable reassignments,
• Negative evaluations,
• Extra scrutiny of one’s performance,
• Violations of one’s privacy,
• Violations of any rights guaranteed by a contract or agency manual,
• False charges being made about the employee,
• Verbal abuse,
• Exclusion from workplace decisions and input,
• Being shunned by managers,
• Verbal or on-line abuse at work or outside of it,
• Physical harm to your person or property,
• Refusal to give the employee a job reference, etc.

In a 2006 Supreme Court case the employer argued that retaliation was limited to employer conduct that adversely affected an individual’s compensation, terms, conditions, or privileges of employment – major employment actions such as firing or demotion. The Court disagreed and imposed a broader definition. It noted that an employer may retaliate against an individual even by “taking actions not directly related to his employment or by causing him harm outside the workplace.” The individual must prove that the employer’s action would have been materially adverse to the reasonable employee or applicant, such that it would have dissuaded a reasonable worker from making or supporting a charge of discrimination.  But, the Court also said that “petty slights or minor annoyances” will not amount to retaliation.

Now, to the Law.

If an employee has suffered any of the actions listed above or similar harm, the analysis of whether it is illegal retaliation begins with whether the employee had engaged in “protected activity.”   The law generally considers that to be an employee’s opposition to a practice believed to be unlawful discrimination. Opposition is protected from retaliation as long as it is based on a reasonable, good-faith belief that the complained of practice violates anti-discrimination law, and the manner of the opposition is reasonable.  For example,

• Complaining to anyone about alleged discrimination against oneself or others,
• Threatening to file a charge of discrimination,
• Picketing in opposition to discrimination,
• Refusing to obey an order reasonably believed to be discriminatory,
• Participating in legal proceedings to fight discrimination, even if the claims ultimately were found to be invalid,
• Filing a charge of employment discrimination,
• Cooperating with an internal investigation of alleged discriminatory practices,
• Serving as a witness in an EEO investigation or litigation,
• Requesting a reasonable accommodation based on religion or disability, etc.

There are two ways to prove retaliation.  The first is with direct evidence, such as a manager’s oral or written statement which on its face demonstrates bias toward the employee because he/she engaged in protected activity.  EEOC notes that direct evidence could be a manager’s job reference labeling the employee a “troublemaker” or otherwise advising a selecting official not to get mixed up with the employee.

The second way to prove retaliation is with circumstantial evidence, using a four-part prima facie criteria.

• Had the employee previously engaged in protected activity or opposed unlawful discrimination?
• Was the agency aware of employee’s activity?
• Was the employee contemporaneously or subsequently adversely affected by some action of the agency?
• Does some connection exist between complainant’s activity and the adverse employment decision (e.g., the adverse employment decision occurred within such a period of time that a retaliatory inference arises)?  The shorter the time between the protected activity and the retaliation the easier it is to prove this element.

If the answer to each question is yes, the employer is obligated to come up with a credible reason why it took the action it did.  If it cannot, the arbitrator or judge can find that it was due to discrimination.

The Spouse and the Cat

Not long ago the Supreme Court made it clear that if one spouse engages in the protected activity, but the other suffers the retaliation that also violates the law. In fact, the Court says anyone in the employee’s “zone of interest” is protected.  The following case excerpt involved a fiancé being terminated for the protected activity of his future wife.

[W]e conclude that Thompson falls within the zone of interests protected by Title VII. Thompson was an employee of NAS, and the purpose of Title VII is to protect employees from their employers’ unlawful actions. Moreover, accepting the facts as alleged, Thompson is not an accidental victim of the retaliation—collateral damage, so to speak, of the employer’s unlawful act. To the contrary, injuring him was the employer’s intended means of harming Regalado. Hurting him was the unlawful act by which the employer punished her. In those circumstances, we think Thompson well within the zone of interests sought to be protected by Title VII. He is a person aggrieved with standing to sue.

The Court has also made clear that the manager taking the retaliatory action need not be the one with the discriminatory motive.  If one manager induces a second to take retaliatory action even if the second manager has no idea that the first is acting out of bias, management has still violated the law.  It is called a “cat’s paw” connection after the fable where a monkey induces a cat by flattery to extract roasting chestnuts from the fire. After the cat has done so, burning its paws in the process, the monkey makes off with the chestnuts and leaves the cat with nothing. Check out this law firm’s explanation.

The Payoff and the End

What can the employee get out of pushing back against protected activity retaliation?  A lot if they come to the union to file a grievance or EEO charge.  A federal employee can get back pay for salary or benefits lost, retroactive promotion, compensatory damages up to $300,000 on top of the back pay, and attorney fees.  It is also possible to have the manager who took the illegal action disciplined or fired.  Here are excerpts from two EEOC cases that show the corrective action taken.

An EEOC AJ found, and the Commission affirmed, that the close temporal proximity between management’s knowledge of complainant’s filing his EEO complaint on February 27, 2003, and complainant’s reassignment on May 23, 2003, created an inference of reprisal discrimination. The Commission noted that while the Nurse Manager stated that there had been long-term plans to eliminate a full-time Registered Nurse from the Specialty Clinic, there was no evidence to support that assertion. Further, the EEO Counselor’s report in connection with complainant’s former complaint, concerning his heavy workload, noted the Nurse Manager’s statement that she would “have no problem” assigning complainant to the Primary Care Clinic if he felt his workload in the Specialty Clinic was too heavy. Thus, the Commission concluded that the agency’s stated reason for the reassignment was a pretext for reprisal. The agency was ordered to reassign complainant back to the Specialty Clinic, and pay him $65,000.00 in non-pecuniary compensatory damages for the mental anguish, including anxiety, depression, humiliation, and sleep deprivation, which complainant suffered following his reassignment. Samuel S. Mohr, Jr. v. Department of Veterans Affairs, EEOC Appeal No. 0720070057 (February 23, 2007).

According to the record, Complainant and the Agency settled a sexual harassment claim concerning the Postmaster. One week later, the Postmaster refused to allow Complainant to work when the facility was short-handed. In addition, the Postmaster referred Complainant to the Employee Assistance Program (EAP) noting that she was unable to get along with co-workers and caused dissension by inciting co-workers and managers “into controversy.” Complainant was also issued a letter of warning for leaving her post without providing sufficient medical documentation. Complainant subsequently filed an EEO complaint alleging that the Postmaster subjected her to retaliation. The Commission initially found that the temporal proximity between the mediation of Complainant’s sexual harassment claim and the referral to the EAP was evidence of a nexus between complainant’s prior EEO activity and the referral. While the Postmaster asserted that he referred Complainant to EAP because he was concerned about her behavior and work performance, the record showed that Complainant had recently been commended on her performance, and management officials had not previously addressed any concerns with her. In addition, the Agency issued Complainant the letter of warning and placed her in leave without pay status without acknowledging medical documentation Complainant had provided. The Agency was ordered to, among other things, pay Complainant $7,998 for lost overtime, restore sick leave used during the applicable period, and pay complainant $30,335.48 in proven compensatory damages. Holmes v. U.S. Postal Serv., EEOC Appeal No. 0720090025 (April 27, 2010)