What happens when a decision-maker acts with an innocent motive, but unwittingly carries out the retaliatory motive of a subordinate? Does the cat’s paw
impute the unlawful intent to the otherwise innocent manager or supervisor? In Seoane-Vazque v. The Ohio State University (6th Cir. 8/19/14) [pdf]
, the 6th Circuit held that while the cat’s paw applies to retaliation claims, it is still bound by the higher but-for causation standard the Supreme Court applied to retaliation claims in University of Tex. S.W. Med. Ctr. v. Nassar
Following Nassar, “a Title VII plaintiff alleging retaliation cannot establish liability if her firing was prompted by both legitimate and illegitimate factors.” … So long as the untainted factors were sufficient to justify [the] ultimate decision, the University will be entitled to summary judgment.
Thus, in any claim alleging retaliation under Title VII, courts must apply the stricter “but for” causation standard, regardless of the identity of the purported decision-maker. As a result, retaliation claims remain harder for employees to prove, and easier for employers to win on summary judgment.
This all makes for an interesting academic discussion, but once you reach these platitudes of burden of proof and causation, you’ve already lost. You’ve already fired an employee who engaged in protected conduct. You’ve already gotten sued. And, you’ve already spent a tidy sum investigating the complaint, taking discovery, and preparing a (hopefully winning) motion for summary judgment. You’ve spent $100,000 (or more) to justify the termination of a marginal employee. In that case, have you really won?
What’s the safer course of action? Only terminate as a last resort. Treat employees who engage in protected activity with kid gloves. Make an informed decision early in any case whether it is one worth fighting or settling. Better yet, consider severance pay in exchange for a release claims in all but the most egregious of terminations. Nassar
’s “but-for” causation standard may shift employers’ decisions to fight over flight in more cases, but employers should resist the litigation urge, which is usually a losing proposition for all. I know this is odd advice coming from a litigator, but a termination decision must be fully informed, and the vast void of litigation costs must be a key part of that decision.
In Fresh & Easy Neighborhood Market (8/11/14) [pdf], the NLRB held that an employee engaged in protected concerted activity merely by asking co-workers for help in making a sexual harassment complaint to her employer. It was irrelevant to the Board whether the employee had engaged other employees for group activity; all that mattered was that the employee engaged others at all.
Margaret Elias, a cashier, wrote a note on a whiteboard about some training known as “TIPS.” When she returned to the whiteboard the next day, she noticed that the “P” in “TIPS” had been changed to a “T,” and someone had drawn a picture of a worm (or peanut) urinating on her name. In support of her intent to file a sexual harassment complaint with her employer, Elias asked three co-workers to sign a piece of paper that contained a copy of the whiteboard. When the employee relations manager later spoke to Elias about her harassment complaint, she asked why Elias felt the need to obtain co-workers signatures, and instructed her not to obtain any further statements so that she could conduct an investigation. Elias admitted that was only filing the complaint on her own behalf, and her co-workers were not involved other than as potential witnesses.
Based on these facts, the NLRB concluded that the employer violated the Act by questioning Elias about the signatures she obtained:
Here, Elias sought her coworkers’ assistance in raising a sexual harassment complaint to management, by soliciting three of them to sign the piece of paper on which she had copied the altered whiteboard message in order to “prove” the harassment to which she had been subjected. Although she did not intend to pursue a joint complaint, her testimony establishes that she wanted her coworkers to be witnesses to the incident, which she would then report to the Respondent…. Elias’ conduct in approaching her coworkers to seek their support of her efforts regarding this workplace concern would constitute concerted activity. Elias did not have to engage in further concerted activity to ensure that her initial call for group action retained its concerted character.
Even if the employee was pursuing her own individual claim, her “selfish motivation” for speaking to her co-workers was irrelevant because “concertedness is not dependent on a shared objective or on the agreement of one’s coworkers with what is proposed.”
This case creates a dangerous precedent. It enables an employee to create an unfair labor practice out of thin air merely by airing an issue with co-workers, regardless of whether those co-workers share in that concern. It makes case for the lone wolf, who, even though, by definition, a lone wolf cannot act in concert.
I’ve long argued that the current iteration of the NLRB is using “protected concerted activity” as a life-vest to prop up its own existence. Fresh & Easy does little to dissuade me of that opinion. If a single employee, admittedly acting on her own behalf, can create an unfair labor practice merely by talking to other employees about a workplace issue, then any workplace conversation could constitute protected concerted activity. If that is the rule, then good luck disciplining employees for anything.
And to make an end is to make a beginning.
― T.S. Eliot
According to my blogging service, this is my 2,000th post. While this milestone is mind-blowing (at least to me), I am marking this bi-millenium with news of a different kind. Today, I start the next phase of my career at Meyers, Roman, Friedberg & Lewis
Why switch law firms, you ask? It’s hard to quantify “why.” New opportunities, new challenges, new surroundings, etc. In short, I feel energized, which, when you have to get up and go to work everyday, is a really good thing. I am excited by everything Meyers Roman offers to my career and to me. I’m thrilled to join a vibrant firm with a vibrant labor and employment practice.
I’d be remiss if I did not say thank you to the firm that I’ve called home for the past 8 years, and was the only home this blog has known. Kohrman Jackson & Krantz was nothing but supportive of me and this blog, and for that I will be eternally grateful.
For you, my loyal readers, the move will be transparent. Other than seeing a different firm’s logo above the fold, nothing else is going to change (for now). I’ll still bring you daily posts, Monday through Friday, which will still include my famous Friday What I’m Reading
weekly recap. Still, new beginnings bring new opportunities, and I’m looking forward to version 2.0 of the blog, which will bring more multimedia, including (if I can get my stuff together) a podcast.
I’d love to hear from anyone and everyone. My new contact information is:
Meyers, Roman, Friedberg & Lewis
28601 Chagrin Blvd., Ste. 500
Cleveland, Ohio 44122
There are lots of snippets of Robin Williams I could play. I chose this one
I'll see everyone Monday with some huge news.
Here’s the rest of what I read this week:
Social Media & Workplace Technology
HR & Employee Relations
Wage & Hour
Often when we consider the issue of temporal proximity in a retaliation case, we examine it from the standpoint of whether temporal proximity is sufficient to infer retaliatory intent when the adverse action happens right on the heels of the protected activity. What happens, however, if the converse is true—if a long period of time elapses between the protected activity and the adverse action. Can an employer save itself from a retaliation claim simply by waiting it out? This was the question the court faced in Malin v. Hospira, Inc. (7th Cir. 8/7/14).
Deborah Malin worked in the IT department of the Abbott Laboratories’s hospital product division (spun off to a new company, Hospira, in 2006). In July 2003, she informed her direct boss, Bob Balogh, that she was going to complain to HR about sexual harassment by her indirect supervisor, Satish Shah, who reported to Mike Carlin. Before she could complain to HR, Balogh told her that Carlin told him to do everything in his power to stop Malin from going to HR. Malin ignored the stop sign and lodged her harassment complaint with HR.
Between the 2003 complaint and the 2006 Hospira reorganization, Malin applied for several promotions but received none of them. On June 14, 2006, the management team (including Carlin, then the CIO) met to discuss new roles for current IT employees. Five days later, Malin took emergency FMLA leave. Several weeks later, the IT department announced its reorganization, which again resulted in Malin being passed over for a promotion.
Among other claims, Malin claimed that when Hospira executed its 2006 reorganization, it retaliated against her for the 2003 harassment complaint. The court concluded that the intervening three-year gap between the harassment complaint and the decision not to promote Malin was insufficient to defeat her retaliation claim:
[A] long time interval between protected activity and adverse employment action may weaken but does not conclusively bar an inference of retaliation…. Rather, if the time interval standing alone is long enough to weaken an inference of retaliation, the plaintiff is entitled to rely on other circumstantial evidence to support her claim….
The evidence in this case permits an inference that Carlin had a long memory and repeatedly retaliated against Malin between 2003 and 2006. Malin was denied promotions numerous times between 2003 and 2006. During that time, Carlin was the final decision-maker on all promotions in the IT department, both at Abbott and after the spin-off at Hospira. Malin’s immediate supervisors repeatedly told her that she would be an excellent fit for newly-available positions at higher salary grades and that they would recommend that she be promoted into them. Nevertheless, Malin did not receive any promotions at Hospira between 2003 and 2006…. These incidents are circumstantial evidence that Carlin remembered Malin’s complaint about Shah and acted to prevent her from being promoted at Hospira long after the complaint was made.
This case serves as a solid reminder that an employer cannot hold a grudge against an employee who engaged in protected activity, with the hope that the passage of time will permit later retaliation. If an employee can connect the dots between the protected activity and the adverse action, the employer faces risk, no matter how much time has passed.Image via Robbert van der Steeg (originally posted to Flickr as Eternal clock) [CC-BY-SA-2.0], via Wikimedia Commons