By: Ogletree Deakins

Title VII does not include “care-giver” as a separate category for purposes of protection against discrimination. However, in a decision involving the failure to promote a woman with four young children, the 1st U.S. Circuit Court of Appeals has reminded us that one important premise of Title VII’s gender discrimination provision is that “women have the right to prove their mettle in the work arena without the burden of stereotypes regarding whether they can fulfill their [work-related] responsibilities.” Chadwick v. Wellpoint, Inc., 1st Circ. No. 08-1685, March 26, 2009.

Laurie Chadwick brought a claim of gender discrimination against her employer, WellPoint, Inc. and Anthem Health Plans of Maine (together, “WellPoint”), an insurance company, after she was denied a promotion in 2006 as Team Leader of a group of Recovery Specialists. At the time of her application for promotion, Chadwick had worked for WellPoint as a Recovery Specialist for seven years, and had received a score of 4.4 out of a maximum of 5.0 on her most recent performance review. Donna Ouelette, the individual who was promoted instead, had been a Recovery Specialist for one year, and had received an evaluation of 3.84.

In 2006, Chadwick was the mother of an 11-year-old and 6-year-old triplets. At the same time, she was taking one course each semester at a local university. There is no indication that Chadwick’s parental responsibilities had an adverse impact on her job performance; in fact, Chadwick’s husband was the primary care-taker of all four children. Shortly before the promotion interviews, Nanci Miller, Chadwick’s immediate supervisor, who also was the decision-maker with respect to the promotion, sent an e-mail to Chadwick, commenting on the fact that she had recently learned that Chadwick was the mother of triplets. (The e-mail opened with the phrase, “Oh, my!”) During the interviews, Linda Brink, Chadwick’s former supervisor, mentioned Chadwick’s parental status. Further, and most notably, when Chadwick subsequently asked why she had not received the promoted, Miller stated that, “It wasn’t anything you did or didn’t do. It was just that you’re going to school, you have the kids and you just have a lot on your plate right now.” In that same discussion, Miller stated to Chadwick that, “if [the interviewers] were in your position, they would feel overwhelmed.”

In response to Chadwick’s claim, WellPoint filed a motion for summary judgment. The lower court granted the motion on the basis that nothing in Miller’s words showed that Chadwick was not promoted because of her gender. On review of that decision, the 1st Circuit reversed, stating that a plaintiff is entitled to prove discrimination by circumstantial evidence alone, and that Chadwick was not required to show an explicit statement from WellPoint that Chadwick’s gender was the basis for the adverse decision. Instead, the court found that a jury could infer, from Miller’s statements that “you have the kids” and “you just have a lot on your plate right now,” that Chadwick wasn’t denied the promotion because of her job performance, but because Miller – and therefore WellPoint – assumed that as a woman with four young children, Chadwick might not “give her all” to the job. As the court pointed out, “the essence of employment discrimination is penalizing a worker not for something she did but for something she simply is.”

This case was decided by the First Circuit under a summary judgment standard (where all inferences must be drawn in favor of the plaintiff), and therefore is not a decision of ultimate liability. However, the opinion makes an important point. In simple terms, an employer is free to discipline, fail to promote, or fire an employee whose performance suffers due to personal obligations or interests, including childcare, without necessarily incurring liability under Title VII. However (and this is an important “however”), an employer is not free to assume that a woman – simply because she is a woman – will necessarily be a less productive worker simply because of family responsibilities.
 

The Family and Medical Leave Act allows individuals to take unpaid leave from work and requires that in most cases, such individuals be returned to their prior position or an equivalent one upon return from the leave. The 7th U.S. Circuit Court of Appeals has clarified that requirement, and has held that when an employer discovers information during an employee’s FMLA leave that would otherwise form the basis of a valid termination, the FMLA does not act as a bar to such adverse employment action.  Cracco v. Vitran Express, Inc., 7th Cir., No 07-3827, March 17, 2009.

Kevin Cracco was employed by Vitran, a trucking company, as a Service Center Manager in Markham, Illinois. In October 2006, Cracco requested and was granted a medical leave under the FMLA for a serious health condition that rendered him temporarily unable to work. Vitran then hired temporary employees to cover Cracco’s responsibilities during his absence. These employees discovered several problems that had been created during Cracco’s tenure, including undelivered or damaged freight, unresolved customer complaints, and incorrectly handled overtime payments.

An investigation was undertaken, which resulted in a finding that on multiple occasions, Cracco had deliberately disguised late and damaged deliveries, and had made other work-related mistakes. On November 13, 2006, the day that Cracco returned from his FMLA leave, Vitran terminated his employment.

Cracco filed a lawsuit, alleging that Vitran interfered with his FMLA rights by failing to reinstate him to his position and retaliated against him by firing him. The district court granted summary judgment in favor of Vitran, and the decision was upheld on appeal. In addressing Cracco’s claims, the Seventh Circuit found that the timing of Cracco’s termination, standing alone, could not establish a causal link between Cracco’s FMLA leave and his termination. Instead, the Court held that “the fact that the leave permitted the employer to discover the problems can not logically be a bar to the employer’s ability to fire the deficient employee.” Otherwise, an employer could be forced to reinstate and continue to employ a substandard employee, or risk liability under the FMLA.

Additionally, Cracco argued that his prior positive performance history supported his claim of FMLA violations. The Court disagreed, stating that the existence of such positive reviews did not prohibit Vitran from relying on newly discovered evidence of wrongdoing in its decision to terminate Cracco’s employment. In fact, because Cracco was unable to show that he met Vitran’s legitimate job expectations at the time of his termination, he was unable to set forth a prima facie case of FMLA retaliation, and dismissal of the case was appropriate.

This case is important, because employers often feel as if the FMLA’s reinstatement requirement insulates employees from discipline or termination upon return from medical leave. This case indicates that an employee’s right to return to work after FMLA leave is not unlimited. The fact that an FMLA leave permits the employer to discover problems or policy violations does not bar employer’s ability to fire a deficient employee. Therefore, an employer’s ability to prove that it would have made the same decision had the employee not exercised his rights under the FMLA can assist in avoiding legal liability under that Act.
 

Many companies affected by the current economic downturn are searching for ways to help weather that storm. Occasional reduction in work hours, implementing mandatory vacations, or instituting short-term furloughs can help an employer to retain experienced employees, while allowing the company to achieve cost savings in this time of economic crisis. The Department of Labor (DOL) recently released three opinion letters written in January of this year in response to employer inquiries about the effect of such short-term shut-downs on employees’ exempt status under the Fair Labor Standards Act (FLSA). Wage and Hour Opinion Letters, FLSA 2009-2, 1/14/09; FLSA 2009-14, 1/15/09; and FLSA 2009-18, 1/16/09; all released on 3/6/09.

An “exempt” employee is one who is not subject to the overtime or minimum wage (or both) requirements of the FLSA. The "salary basis test" is one way the FLSA distinguishes exempt from non-exempt employees. Under the salary basis test, an employee is considered exempt from overtime compensation if he receives a predetermined amount of pay on a regular basis, and that amount is not subject to reduction based upon the quality or quantity of work. Importantly, an employee is not deemed to be paid on a salary basis if deductions from that individual’s predetermined compensation are made for absences occasioned by the employer or by the operating requirements of the business.

If an employee is classified as exempt but does not meet the necessary salary basis test, that exemption may be lost. Under the FLSA, the employer can be liable for back overtime pay of up to two years (three years for a willful violation) for any non-exempt employee who has been misclassified as exempt. In addition, a single misclassification can trigger a loss of exempt status for an entire group of employees if the whole group has been treated similarly under the organization’s policies and practices.

The three situations addressed by the DOL in its recent opinion letters involve similar circumstances, approached by employers in different ways. The first involves a plant shutdown lasting less than one workweek; the second is a “mandatory time off” policy occasioned by short-term business needs; and the third involves a reduction of work hours for exempt health care employees due to “periods of low patient census.” In all three circumstances, the employers proposed to allow exempt workers to use accrued vacation for the time off, but planned to “dock” pay for workers who had no accrued vacation or paid-time-off (PTO) available.

While the three opinion letters deal with varied factual circumstances, they include a number of important conclusions. First, employers may be able to make deductions from an employee’s accrued vacation or PTO leave bank during a short-term lay-off without affecting that person’s FLSA-exempt status, so long as the employee’s salary remains constant for the pay period. Therefore, in all three circumstances addressed, the employer could implement short-term lay-offs, so long as each affected employee received compensation for the time off. Second, however, the letters point out that problems will arise with respect to individuals who have no available vacation or PTO – in that case, the employer cannot dock the pay of the person for a day in which no work was done. Instead, the employer would have to pay the “regular” salary for the day missed in order for the person’s salary basis to remain the same, otherwise, that employee’s exempt status could be jeopardized. In other words, any salary deductions due to day-to-day or week-to-week operating requirements of the business are inconsistent with the guaranteed salary basis required by the DOL regulations, and could lead to re-classification of the employee.

In addition, the DOL opinion letters include three acceptable actions with respect to short-term layoffs: (1) because the regulations provide that exempt employees “need not be paid for any workweek in which they perform no work,” an employer can require employees to take mandatory time off for a week, and can withhold that week’s salary without jeopardizing the individuals’ exempt status; (2) an employer can refuse to pay for an employee’s completely voluntary decision to take time off (for personal reasons, or other reasons not occasioned by the company’s operating requirements) without affecting exempt status; and, importantly, (3) a permanent change in an exempt employee’s regular workweek schedule (permanently reducing five-day workweeks to four-day workweeks, for instance), with a corresponding change in salary, will not affect exempt status, so long as the exempt individual continues to receive at least the $455 salary minimum required by the regulations.

While a final determination regarding exempt status depends on the specific facts of an employer’s situation, these DOL opinion letters underscore the requirement that, subject to specific exclusions, an exempt employee must receive his or her full salary for any week in which that employee performs any work, without regard to the number of days or hours worked. To disregard this provision is to expose the company to the considerable expense and disruption of a DOL audit with probable attendant liability.
 

Last month, the 10th U.S. Circuit Court of Appeals determined that Oklahoma laws supporting the right of individuals to possess firearms in locked vehicles on company property are not preempted by the federal Occupational Safety and Health Act, and therefore are enforceable. That decision rested on the facts that the Oklahoma state statutes were instituted to regulate employees as members of the general public and not as “workers” and, therefore, that the statutes did not conflict with OSHA standards.

In an interesting follow up, the 6th U.S. Circuit Court of Appeals has addressed a similar issue from a different perspective, and has upheld an employer’s anti-firearm policy. In that case, an individual’s employment termination after the discovery of a firearm in his vehicle on company-controlled property was held not to have violated “public policy,” even though the state’s constitution guarantees its citizens the right to bear arms for defense and security. Plona v. UPS, Inc., 6th Circ., No. 08-3512, 3/6/09.

Gary Plona was fired from his job with United Parcel Service, Inc. (UPS) in Cleveland, Ohio, after a firearm was found in his vehicle, which was parked in a UPS-leased parking lot adjoining his workplace. UPS has a written policy prohibiting its employees from possessing firearms while on company property or while conducting company business; the prohibition specifically includes its parking lots and customer sites. Plano signed an acknowledgement form indicating that he was aware of that policy.

In April 2006, sheriff’s deputies were in the process of conducting a search of cars in the parking lot after receiving a report of contraband located in that area. During that search, a search dog being used by the deputies identified Plona’s car as suspicious. While giving consent for a search of his car, Plano admitted that there was a firearm in that vehicle. There was, in fact, a .22 caliber Luger pistol under the front seat, and an empty ammunition magazine in the glove box. Plona did not have a permit to carry a concealed weapon, nor had he registered the pistol. When UPS was made aware of the situation, Plona was fired.

Ohio is an “at-will” employment state – which means that an employer may fire an employee “for any cause, at any time whatsoever,” even if that termination is a violation of certain employee rights. However, the Ohio Supreme Court has carved out an exception to that at-will employment doctrine for circumstances in which an employee’s firing contravenes public policy. In other words, an individual cannot be fired for reasons that would jeopardize a clear policy for the public good.

Plona filed a lawsuit against UPS, alleging that he had been fired in violation of public policy – the right to bear arms embodied in Article I, Section 4 of the Ohio Constitution. However, the district court granted summary judgment in favor of UPS, holding that Plona had not demonstrated that a clear public policy had been jeopardized by his termination. On appeal, the Sixth Circuit upheld that decision, finding that Ohio does not, in fact, have a clear public policy with respect to the allowance of firearms at workplaces. In support of that holding, the Court pointed out that at least one Ohio law specifically provides that employers may “prohibit[] the presence of firearms on the private employer’s premises or property.”

While Plona attempted to prove that UPS’ reason for firing him was “pretextual,” the Court pointed out that such a rationale simply goes to the “fairness” of the termination. Ohio’s at-will doctrine allows termination for any reason, fair or unfair. The real issue in this case is whether Plona’s termination was against a clear public policy, which would make it illegal. The Court found that UPS plainly was within its rights – as spelled out by Ohio law – to prohibit firearms in the workplace. Plona’s firing was not a violation of public policy, and dismissal of the case was appropriate.

While this result differs from the Tenth Circuit’s decision to uphold Oklahoma’s statutes related to firearms in the workplace, the different results were premised on vastly different state laws. The Tenth Circuit’s decision was based on the wording of two Oklahoma laws that specifically include provisions holding employers criminally liable for prohibiting employees from storing firearms in locked vehicles on company property. In this case, the Ohio legislature’s intent to provide authority to employers with respect to limiting firearms at work sites forms the basis of the Sixth Circuit’s opinion. While workplace safety remains a primary focus of most employers, employers also should remain alert to state and local laws related to firearms, and to developing case law in this area, in order to avoid liability for an inadvertent violation of the law.
 

The 9th U.S. Circuit Court of appeals has held a Washington state medical center in violation of federal labor law for withdrawing recognition of a union during a protected certification period. Virginia Mason Medical Center v. NLRB, 9th Circ., No. 07-73851, Feb. 25, 2009.

Once a labor union is certified as the exclusive bargaining representative of a unit of employees, that union is entitled to a non-rebuttable presumption of majority status for a reasonable amount of time (the “certification period”), which typically is one year. Throughout the certification period, the employer must recognize the union and must bargain with it in good faith, whether or not the employer believes that the union has lost its majority status with the unit’s members during that time.

In 2000, the United Staff Nurses Union Local 141 (Union) won certification as the representative of unit employees at one of 20 medical clinics run by Virginia Mason Medical Center (VMMC) in the Puget Sound area. VMMC tested that certification by initially refusing to bargain with the Union. The NLRB ordered VMMC to bargain and stated that, to ensure that the employees were allowed the “services of their selected bargaining agent for the period provided by law,” the certification period would be deemed to begin on the date that VMMC “begins to bargain in good faith with the Union.”

VMMC’s petition for review of that order was denied in May of 2002, and in late August of that year, the Union requested a meeting to begin negotiations. VMMC accepted October 1, 2002 as the date of the first bargaining meeting. The parties met over 20 times during the following months. However, on September 23, 2003, the clinic manager received a decertification petition from 8 of the 19 unit members. Three days later, on September 26, VMMC withdrew its recognition of the Union, asserting that the Union no longer had the support of the employees. In response, the Union filed an unfair labor practice charge, alleging that VMMC had hired/fired employees based upon their relationship with the Union, had encouraged a decertification campaign, and had not bargained with the Union in good faith.

In the course of that case, the Administrative Law Judge (ALJ) raised the issue of VMMC’s withdrawal of recognition of the Union during the certification period. Although VMMC argued that the certification period began in the Spring of 2002 when its petition for review was denied, the ALJ disagreed, and determined that the certification period began (according to the 2000 NLRB Order) when good-faith bargaining began between the parties – in this case, on October 1, 2002. The ALJ held that VMMC had violated the National Labor Relations Act by withdrawing its recognition of the Union within the defined certification period. In response to VMMC’s argument that it should be excused from penalty because it withdrew recognition only four days before the expiration of that period, the 9th Circuit specifically held that “there is no de minimis exception for technical noncompliance with Board orders.”

The impact of this decision could be increased by the passage of the Employee Free Choice Act, anticipated to occur this year. That Act could dramatically change the union organizing process and the established steps in the process of union formation by eliminating secret ballot voting and by establishing unions based solely on the number of authorization cards signed. In that instance, as now, an employer will be obligated to bargain with a union during the certification period, but under EFCA, will face increased penalties for any failure to do so. That, coupled with this case’s holding regarding the employer’s duty to strictly observe the certification period, is likely to lead to an increase in the number of legal challenges related to union activity and bargaining in the near future.
 

As you plan for 2009, every employer should take steps to address the amendments to the Americans with Disabilities Act (ADA), the new Family and Medical Leave Act (FMLA) regulations, and the anticipated passage of the Employee Free Choice Act (EFCA). The following is a suggested "to do" list.

www.ogletreedeakins.com/publications/index.cfm

The Family and Medical Leave Act (FMLA) generally provides 12 weeks of unpaid leave during a 12-month period to an eligible employee suffering from a serious health condition. An employee who takes FMLA leave is entitled to be restored to the job he or she held at the time the leave commenced, or to an equivalent position. If, however, the employee is unable to return to work at the end of that 12-week period, he or she is no longer protected by the FMLA. Roberts v. The Health Association, 2d Circ., No. 07-3553-cv, February 3, 2009.

Laura Roberts was terminated from her employment with The Health Association (THA) in June 2004. At the time of her termination, Roberts had been out of work for approximately 10 weeks, on an approved FMLA leave. However, at the time of Roberts’ discharge, her doctor had opined that she would be unable to work until at least July 19, 2004, which would have come after the end of her 12-week leave.

Roberts sued her employer, alleging interference with her rights under the FMLA, and claiming retaliation for her exercise of those rights. The district court dismissed the claims, and Roberts appealed to the 2d U.S. Circuit Court of Appeals. The Second Circuit upheld the lower court’s decision on the basis that Roberts could not have returned to her original position at the end of her 12-week leave, based upon her doctor’s opinion. Therefore, the Court held, Roberts was not prejudiced by the early termination. In addition, THA actually paid Roberts for 12 weeks worth of health benefits, which is all to which she would have been entitled had she completed the 12 weeks of leave before being discharged.

In addition, Roberts was unable to show that the circumstances surrounding her termination created an inference of retaliation. In fact, the evidence showed that Roberts was made aware that her job was in jeopardy prior to her formal request for FMLA leave. That fact precluded Roberts from successfully alleging that her termination was based upon a protected FMLA leave request.

In addition to her FMLA claims, Roberts argued that THA violated the Americans with Disabilities Act when the company fired her because it regarded her as disabled. In order to succeed on that claim, Roberts would have to prove that THA regarded her as substantially limited in a major life activity. Where, as in this case, the “major life activity” at issue is working, an employee is required to show that the employer believes the individual to be suffering from a condition that prevents her from working in a broad range of jobs, not simply the job she previously held. Because Roberts did not provide such evidence regarding THA’s actions, the Second Circuit concluded that the lower court’s decision to dismiss the ADA claim was correct, as well.

The FMLA is one of the most administratively difficult federal anti-discrimination laws, partly because of its complexity, and partly because of its overlap with other federal statutes, as in this case. It is essential that an employer understand both its obligations under the FMLA, and the rights that can be appropriately exercised by an employer in dealing with individual employees with medical impairments and serious health conditions. In this case, the employer’s record keeping (which documented the early conversations with Roberts informing that her job was in jeopardy), along with the company’s willingness to treat Roberts fairly by allowing her to collect the 12 weeks of benefits to which she would have been entitled under the FMLA, supported the court’s decision that the company’s actions had a legitimate business basis, and did not violate federal law.

 

The Family and Medical leave Act allows “eligible” employees to take unpaid leave for reasons articulated in that act, including leave of up to 12 workweeks during a 12-month period for the birth or adoption of a child. The act defines “eligible employee” as one who has been employed for at least 12 months and who has worked for the employer for at least 1250 hours during the previous 12-month period. The FMLA specifically makes it unlawful for an employer to “deny the exercise of or the attempt to exercise, any right provided under the FMLA.”

One federal district court recently addressed the issue of whether an employee is barred from proceeding with an FMLA claim when he had been employed for less than 12 months, but requested FMLA leave that would begin more than a year after his employment had begun. Reynolds v. Inter-Indus. Conf. on Auto Collision Repair, N.D. Ill., No. 08-2115, Jan. 23, 2009.

In that case, Christopher Reynolds asked for FMLA leave to care for his newborn son, who was born prematurely and had suffered medical complications. Reynolds began employment with Inter-Industry Conference on Auto Collision Repair (a/k/a/I-CAR) on August 25, 2005. His son was born on August 8, 2006. Reynolds promptly notified his employer of the child’s birth and medical problems, and was granted immediate time off work because of the emergency nature of the situation. On or about August 16, Reynolds returned to work and notified the company’s HR department that his son would remain hospitalized for three months. While the child’s mother would be with the baby during those months, Reynolds asked for his own FMLA leave to begin in November when the baby left the hospital, so that he could assist in his family’s care at that time. At the end of the business day, Reynolds received a phone call from his supervisor and the HR director, terminating his employment for reasons, they said, “related to his skill set.” At the time of his termination, Reynolds had worked for the company for slightly less than one year.

Reynolds then filed a lawsuit alleging, in part, that the company violated the FMLA by firing him immediately after his request for leave. The company filed a motion to dismiss that claim, arguing that Reynolds was not an “eligible employee” (because he had not worked there for 12 months at the time of his request for leave) and, therefore, could not assert a cause of action under the FMLA.

The district court denied the motion to dismiss, allowing the case to go forward. It based that decision on the provision of the FMLA which states that an employer is entitled to 30 days of notice in instances where a requested leave is foreseeable. According to the court, it would be illogical to interpret the notice requirement in a way that would require employees to disclose requests for leave as a convenience to the employer, but then would allow that same employer to retaliate against the employee, based simply on the fact that the employee was just short of becoming “eligible” under the FMLA. The court’s decision means that under the FMLA, an employer may not terminate an “ineligible” employee for requesting foreseeable future leave for which that employee will be eligible and to which he or she will be entitled at the time the leave is to begin.

While this case is a district court decision, and therefore is appealable, the opinion is instructive and is an indication of the fact that courts are recognizing that one purpose in enacting the FMLA was to “balance the demands of the workplace and the needs of families.” Employers should understand that in light of this, courts that address this issue in the future are likely to interpret the FMLA consistently with this opinion.

 

In an unpublished opinion, the U.S. Circuit Court of Appeals for the 10th Circuit reminds us that whether a case is based on allegations of discrimination or on allegations of retaliation, the individual bringing the lawsuit carries the ultimate burden of proof in the case. Sunderman v. Westar Energy, Inc., 10th Cir., No. 08-3059, Jan. 14, 2009.

To establish retaliation under Title VII, an individual’s evidence must withstand the three-part analysis established by the U.S. Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under that test, the plaintiff first bears the burden of establishing a prima facie case: (1) that he engaged in a protected activity; (2) that he suffered a materially adverse employment action; and (3) that a causal connection existed between the protected activity and that action. Once the individual meets that burden, the employer must offer a legitimate, non-retaliatory reason for its employment action. Should the employer satisfy this burden, the plaintiff then bears the ultimate burden of demonstrating that the employer’s reason is “unworthy of credence” so that a fact-finder could infer that the employer did not act for those reasons but instead, for some retaliatory reason.

Derek Sunderman was employed as a manager by Westar Energy, Inc., a public utility company. In March 2002, Sunderman made a complaint to Westar’s HR department regarding certain allegedly offensive sexual comments made by a supervisor, and followed up in October of that year with a written complaint to his own supervisor (Olsen). He then filed a claim with the KHRC and the EEOC, alleging that Westar retaliated against him – by reducing his compensation and suspending him in late October – for making the complaints.

During a 2002-2003 reorganization which was in process prior to Sunderman’s complaints, Westar eliminated a number of positions, including Sunderman’s, and transferred the responsibilities of those positions to the company’s Customer Support Group. Sunderman was referred to the company’s Career Placement Center, and his employment was terminated in August 2003. He then brought a lawsuit against Westar, alleging that his employment there was terminated in retaliation for filing a complaint to the Kansas Human Rights Commission (KHRC) and the EEOC in November 2002. Westar countered that Sunderman’s discharge was based upon the reorganization and was strictly a business decision. The lower court granted summary judgment in favor of Westar. That decision was upheld on appeal to the Tenth Circuit.

The dismissal of Sunderman’s claims was based primarily on the fact that he had provided insufficient evidence showing a causal connection between (1) his complaint to Olsen and/or the filing of his complaint with the KHRC/EEOC, and (2) his termination. The facts showed that Olsen was not a decision-maker in the reorganization or with respect to Sunderman’s ultimate termination. While some cases of retaliation rest upon a “cat’s paw” theory, where a biased individual who lacks decision-making power uses a formal decision-maker as a “dupe” in a deliberate scheme to trigger a discriminatory employment action, Sunderman presented no evidence that Olsen suggested either the reorganization or the subsequent discharge. While the Tenth Circuit determined that the employment actions taken against Sunderman in 2002 (reduction in compensation and a suspension) could be raised by Sunderman as background evidence for the retaliation claim, it also determined that Westar had provided sufficient evidence of its business-related decision regarding Sunderman, and that those two incidents were “insufficient . . . to raise a jury question on the causation and pretext issues that are associated with plaintiff’s [August 2003] termination.”

It is clear that in this case, the company’s documentation of the business reasons for its actions were a primary focus of the court’s analysis and review. Although Sunderman had the ultimate burden of proof in this case, the company’s ability to support its own defense with evidence and testimony was sufficient to refute Sunderman’s claims. Once again, objective and complete documentation of a company’s business decision is integral to a favorable result in a claim related to that decision.
 

Before an individual may file a lawsuit under Title VII or the ADEA, he or she is required to file (or cross-file) a charge of discrimination with the EEOC. The charge is legally sufficient only if it describes with particularity the parties and the actions or practices of which the individual is complaining. The scope of a plaintiff’s right to file a federal lawsuit is determined by the contents of that charge; that is, the lawsuit must be based upon the claims described in the charge, or reasonably related to those described in the charge. Typically, a claim submitted to federal court will be dismissed if the EEOC charge alleges one basis of discrimination, and the formal litigation alleges another, unrelated basis.

The 4th U.S. Circuit Court of Appeals has allowed a plaintiff to allege “retaliatory discharge” in her federal lawsuit, although her employment was not terminated until after a charge for which she already had received a right-to-sue notice and which, therefore, did not specifically claim her firing as part of the complained-of retaliation. Jones v. Calvert Group Ltd., 4th Cir., No. 07-1680, 1/05/09.

Linda Jones is an African-American female who filed a complaint with the Maryland Commission on Human Relations in 2003, alleging that she had been denied a promotion on the basis of her race, sex, and age. That complaint was resolved in 2004 by written agreement, under which the company agreed to provide certain training and assistance to Jones to enable her to qualify for promotions ion the future.

Immediately after that resolution, Jones received a negative performance evaluation – her first ever. She then filed another charge of discrimination. In the second charge, Jones alleged that in retaliation for her first charge, she was denied mentoring opportunities and that her performance was unduly scrutinized, resulting in an undeserved negative evaluation. Jones received a right-to-sue letter for the second charge on August 6, 2006. Her employment was terminated on October 19, 2006.

On November 3, 2006, Jones filed a lawsuit alleging that she was discriminated against because of her race, sex, and age, and that she was terminated in retaliation for engaging in activity protected by Title VII and the ADEA. The company argued that Jones had failed to exhaust her administrative remedies, since her second charge had not set forth specific claims of discrimination, and that her retaliatory discharge was not specifically mentioned in the charge. The lower court granted summary judgment against Jones on all of her claims. On appeal, the Fourth Circuit agreed that Jones failed to specifically include her claims of discrimination in her second charge and, therefore, failed to exhaust her administrative remedies under Title VII and the ADEA. In addition, however, the Fourth Circuit remanded the retaliation claim back to the lower court for further proceedings on that claim.

The Fourth Circuit’s decision was based on the position of a number of other courts that have addressed this issue, and which have held that a plaintiff may raise the retaliation claim for the first time in federal court if that claim is “like or related to allegations contained in the [prior, timely] charge.” Jones’ second charge alleged a pattern of conduct, including denial of mentoring opportunities, and actions that resulted in her first-ever negative performance review. She specifically alleged that she was being continually “subjected to differential treatment” in retaliation for her first charge. In light of Jones’ allegation that retaliatory conduct was ongoing, the court held that her termination was “merely the predictable culmination of [the employer’s] alleged retaliatory conduct.” Therefore, Jones’ federal court claim of retaliatory discharge was “reasonably related” to the allegations set forth in her second charge, and should be allowed to go forward in the federal court action.

Employers must recognize that discrimination and retaliation are two separate legal claims and that – as in this case – an employee who is unable to support a claim of discrimination, either substantively or procedurally, may still be able to sufficiently support a claim of retaliation. Supervisors and managers must be understand the type of activity that is protected under federal and state anti-discrimination laws, and must be trained to work cooperatively with employees who have exercised their rights to engage in such activity.