Retaliation Litigation: The Second Bite at the Apple

1. Retaliation Litigation: The Second Bite at the Apple Presented by: Elizabeth M. Ebanks Tevis Marshall David Rappaport, CarMax Association of Corporate Counsel WMACCA in Richmond October 7, 2013

2. Retaliation • Historically viewed by the EEOC as one of the most serious forms of misconduct by employers. • Every major employment law contains an anti-retaliation provision.

3. Retaliation • Title VII • Pregnancy Discrimination Act • Equal Pay Act • Age Discrimination in Employment Act (ADEA) • Americans with Disabilities Act (ADA) • Genetic Information Nondiscrimination Act (GINA) • Family Medical Leave Act (FMLA) • Uniformed Services Employment and Reemployment Act (USERRA) • Fair Labor Standards Act (FLSA) • Occupational Safety and Health Act • Affordable Care Act

4. EEOC Charge Statistics

5. Why are Retaliation Claims Rising? • Legislative and case law developments have broadened the scope of protection. • Punitive damages are available. • Retaliation claims have a higher success rate. • Retaliation claims have become the “tail that wags the dog” in a discrimination suit.

6. Objectives • Understanding protected activity • Understanding adverse employment actions • Understanding the causal link standard • Hypotheticals and recent cases • Best practices to minimize retaliation claims

7. Elements of a Retaliation Claim In order to establish a prima facie case of retaliation, a plaintiff must prove that: • He or she engaged in a protected activity; • The employer took adverse action; and • There was a causal link between the two events.

8. Protected Activity Title VII’s anti-retaliation provision states: “It shall be an unlawful employment practice for an employer to discriminate against any of his employees . . . because he has opposedany practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participatedin any manner in an investigation, proceeding, or hearing under this subchapter.”

9. Protected Activity • Opposition Clause • Provides the broadest protection. • Includes conduct outside of EEOC charges and court proceedings, such as informal complaints. • Participation Clause • Applies when individuals file formal discrimination charges with the EEOC or other enforcement agencies. • Applies when individuals assist or participate in agency investigations and court proceedings.

10. Protected Activity Examples of Opposition: • Threatening to file a charge or complaint • Complaining to anyone about discrimination against oneself or others • Refusing to engage in discrimination • Requesting a reasonable accommodation

11. Protected Activity Examples of Participation: • Filing a formal charge with EEOC • Assisting in an agency proceeding or investigation • Engaging in court proceedings

12. Protected Activity Opposition v. Participation Protection: • Good faith, reasonableness standard • Disclosure of confidential information • Refusal to perform work • Lying in the course of an investigation

13. Adverse Action What is a materially adverse action? • Burlington Northern v. White, 548 U.S. 53(2006) • Adverse employment actions are “not limited to discriminatory actions that affect the terms and actions of employment.” • Employers can effectively retaliate by causing harm outside the workplace. • An employee only needs to show that the employer’s action “might dissuade a reasonable worker from making or support a charge.”

14. Adverse Action • Examples: • Denial of promotion, denial of job benefits, demotion, suspension, discharge, negative evaluations? • Adverse Action (EEOC Guidance Manual) • A supervisor who hides an employee’s purse because it was unsecured, and took an abandoned recycle bin “to make a point” about the need to return the bins directly to work? • No Adverse Action (6th Cir. 2011) • A sales representative whose office access, voice mail and computer network access were disabled hours after she complained of sex discrimination? • Adverse Action (M.D. Tenn. 2011)

15. Adverse Action • Examples: • An employee who was fired after submitting a written complaint of discrimination . . . even though termination was later rescinded? • Adverse Action (8th Cir. 2011). Compare, 2009 U.S. Dist. LEXIS 47728  (D. Minn. 2009) (no adverse action). • Post-employmentnegative job reference or refusal to give reference? • Adverse Action (10th Cir. 2011) • Supervisors’ conduct in allegedly rolling their eyes at plaintiff after she reported another supervisor’s sexual harassment, interrupting her and ignoring her contributions to the workplace? • No Adverse Action (10th Cir. 2008)

16. Causal Link • Mixed-Motive v. But-For Causation • Univ. of Texas Southwestern Medical Center v. Nassar, 133 S. Ct. 2517 (June 24, 2013): • Title VII retaliation claims must be proved according to traditional principles of but-for causation. • Plaintiffs must show that the causal link between the injury and the wrong is so close that the injury would not have occurred but for the act. • Title VII claims are now harder for plaintiffs to prove.

17. Causal Link • Timing is highly litigated. • Lack of knowledge of protected activity by decision maker severs connection. Gollas v. Univ. Texas Health Sci. Ctr. at Houston, 425 Fed. Appx. 318 (5th Cir. 2011). • No causal connection if adverse employment action would result absent protected activity. Laing v. Fed. Express Corp., 703 F.3d 713 (4th Cir. 2013).

18. Limitations on Retaliation Claims HR Professionals and Retaliation • The “Manager Rule” • An HR professional’s concerns must cross the line from performing typical job duties to an employee lodging a personal complaint.

19. Hypothetical #1 • Jane and John are engaged to one another and work for the same company. • Jane files a charge of discrimination with the EEOC alleging that her supervisor discriminated against her on the basis of her gender.

20. Hypothetical #1 • Three weeks after the employer learns of the EEOC charge, John is fired. • John then files his own EEOC charge alleging that he was retaliated against because Jane, his fiancé, filed an EEOC charge.

21. Hypothetical #1 • Does John have an actionable retaliation claim? • YES- Thompson v. North American Stainless, 131 S. Ct. 863(2011) • Did John engage in “protected activity” on behalf of himself or Jane? • “Associational” retaliation • Where do we draw the line? (e.g., Girlfriend? Close friend? Co-worker?) • Supreme Court declined to identify a “fixed class of relationships for which third-party reprisals are unlawful. “ • A “close family member” will “almost always meet the standard.”

22. Hypothetical #2 • The FLSA makes it unlawful to “discharge or in any other manner discriminate against any employee because such employee has filedany complaint or instituted or caused to be instituted any proceeding…” • An employee orally complains to company officials about potential overtime violations under the FLSA.

23. Hypothetical #2 • Has the employee engaged in protected activity? • District court and the 7th Circuit dismissed this claim because the anti-retaliation provision did not cover oral complaints. • Supreme Court vacated and remanded in Kasten v. Saint–Gobain Perf. Plastics Corp. , 131 S. Ct. 1325 (2011). • Oral complaint must be “sufficiently clear and detailed for a reasonable employer to understand it…”

24. Hypothetical #3 • Mike and John are coworkers. • John works as an Employee Assistance Program (EAP) consultant for the employer. • Mike tells John that his supervisor had been sexually harassing him for months. • John says to Mike: “It appears to [me] that [you] are a victim of sexual harassment in violation of [the employer’s] sexual harassment policy.”

25. Hypothetical #3 • John then reviews the steps of the employer’s sexual harassment policy with Mike and suggests a plan to report the harassment. • Mike signs a release giving John permission to speak with the employer’s HR Department on his behalf. • John reports the harassment to HR. • HR meets with Mike, investigates his complaint, and terminates the harasser.

26. Hypothetical #3 • Mike then tells John that he (Mike) is being retaliated against by his Unit Director for reporting the harassment. • John meets with his colleagues in the EAP to discuss Mike’s problems. • It was agreed that John would call HR to offer insight as to how the employer should stop the harassment. • An HR manager returns John’s call, indicating that "he had already spoken with [Mike], who had also reported the harassment.” • John offers the HR manager EAP services with respect to coaching the department director as to “how human resources might better respond to [Mike’s] complaints.” Instead of accepting John’s offer, the HR manager declines and states that he will speak with the unit director himself.

27. Hypothetical #3 • The HR manager later contacts John and says that he is working on an appropriate response to Mike’s complaints. • At some point, John tells both and Mike and the HR manager that the employer is “mishandling the investigation.”

28. Hypothetical #3 • Two years pass without any further involvement by John in any of Mike’s issues. • A manager then calls John to inform him that Mike had filed an EEOC charge for sexual harassment. • The company settles Mike’s suit. • The company then meets with John and questions his involvement with Mike’s complaints from two years prior.

29. Hypothetical #3 • John states that he had told Mike "that what had happened to him was sexual harassment." • The employer tells John that "he had not protected [the employer’s] interests and that [his] conduct left [the employer] in a compromised position." • John is then fired for failing to “perform or act in a manner that is consistent with the best interests of [employer]."

30. Hypothetical #3 • Does John have a viable retaliation claim? • NO, according to Demasters v. Carilion Clinic, 2013 U.S. Dist. LEXIS 133660 (W.D. Va. 3013).

31. Hypothetical #3 Reasoning: • John’s actions did not fall within the participation clause. • John had nothing to do with Mike’s EEOC charge or Title VII lawsuit. • The mere act of counseling another employee, absent the concurrent existence of a Title VII action or an EEOC complaint, is not sufficient to bring a plaintiff within the participation clause.

32. Hypothetical #3 Reasoning: • John was not engaged in oppositional activity. • His statements to Mike were not made directly to the employer, but rather were part of the counseling provided to Mike under the EAP. • “Merely ferrying [Mike’s] allegations to [the HR Department] is in no sense oppositional, and [John] did not engage in protected activity in doing so.” • John’s complaints about the manner in which the employer was mishandling Mike’s complaints did not concern a practice made unlawful under Title VII.

33. Minimizing Retaliation Claims • Anti-retaliation policy • Update to make more robust • Distribute upon hire and at regularly documented intervals • Train Supervisors • Upon hire, promotion, and at least annually and document attendance • Address concepts but also provide tangible examples

34. Minimizing Retaliation Claims • Partner HR with Management (sometimes assisted by legal counsel) • Consider internal vs. external investigator • Thoroughly and fairly investigate and adequately document

35. Minimizing Retaliation Claims • When possible, take the alleged discriminator/harasser out of the decisional loop for any action that could be deemed retaliatory • Check in with the complaining employee during the investigation and thereafter • Guard against repetitive/petty documentation which might be construed as “building a file” in retaliation

36. Minimizing Retaliation Claims • Pause and reflect before implementing any decision that could be construed as retaliatory. • Consider temporal proximity. • A paper trail that accurately reflects that the company has given the employee the benefit of the doubt will contribute mightily to a positive result.

37. Question and Answer Elizabeth M. Ebanks - Elizabeth.Ebanks@ogletreedeakins.com Tevis Marshall – Tevis.Marshall@ogletreedeakins.com Ogletree, Deakins, Nash, Smoak & Stewart, P.C. 6802 Paragon Place, Suite 410 Richmond, Virginia 23230 855.843.1808 David Rappaport - David_A_Rappaport@carmax.com CarMax (804) 935-3548

38. EEOC Gone Wild:Defending EEOC Systemic Cases and Investigations – A Strategy for Employers Presented by: Jimmy F. Robinson, Jr. Amy M. Pocklington David Rappaport, CarMax Association of Corporate Counsel WMACCA in Richmond October 7, 2013 EEOC

39. The EEOC’s Renewed Systemic Initiative: • Increased Funding • EEOC attorneys trained for systemic litigation • EEOC’s goal is to identify class cases proactively • Strategic Enforcement Plan for 2013-2016

40. Pattern or Practice Cases • What’s the difference between a traditional class action under Rule 23 and a “pattern or practice” case?

41. Class Action Monster

42. Pattern or Practice Versus Rule 23 Class Action • Rule 23’s requirements of numerosity, commonality, typicality, and adequacy of representation do not apply • No class certification • Proverbial “class action monster” • Litigated in two phases • International Brotherhood of Teamsters v. U.S., 431 U.S. 324 (1977).

43. The EEOC’s Commitment To Systemic Cases: • In 2011, the EEOC finished investigating 167 systemic matters • 96 resulted in cause findings (more than 50%) • 23 resulted in lawsuits (roughly 25%) • 9% of all merit filings • 35 resulted in settlements (roughly 40%) • Why? • More bang for the buck! • Significant backlog of charges and limited number of investigators • Systemic cases affect a large number of people for the price of one investigation

44. EEOC’s Systemic Initiative • Transform single charge into systemic action • Nationwide requests for employee data • Use subpoena power to get broad data • Partner with other agencies to get shared information

45. The EEOC’s Success With Systemic Cases: • EEOC v. Verizon Maryland, Inc. (2011) • $20 million fund to compensate 800 employees disciplined or fired pursuant to an inflexible attendance policy that did not provide an accommodation for disability-related absences. • EEOC v. Pepsi Beverages (2012) • $3 million settlement on behalf of more than 300 African Americans adversely affected by a criminal background check policy that identified individuals arrested but neither prosecuted nor convicted. • EEOC v. Blockbuster, Inc. (2012) • $2 million settlement on behalf of alleged sexual harassment victims and national origin and race discrimination victims. • EEOC v. Dura Automotive (2012) • $750,000 settlement on behalf of employees required to disclose their legally prescribed medications after testing positive for them and who were required to stop taking medications without evidence that job performance was affected

46. EEOC’s Systemic Initiatives How Does it happen????? • Section 706 of Title VII • Charge of Discrimination • EEOC Investigation • “Reasonable Cause” to believe employer engaged in “pattern or practice” of discrimination

47. EEOC’s Systemic Initiatives What raises interest???? • Employer conduct beyond one claimant • EEOC has received numerous charges

48. EEOC’s Systemic Initiatives LIMITATIONS ON EEOC • Timely filed charge of discrimination • EEOC barred from seeking relief for any alleged act after 300 days

49. EEOC’s Systemic Initiatives • EEOC must exhaust all administrative remedies • Claim must be within scope and “reasonably related to” underlying charge • EEOC’s investigation of that charge • Conciliation of that charge

50. EEOC’s Systemic Initiatives WHAT IS THE POTENTIAL RELIEF??? • Economic Damages • Emotional Distress • Punitive Damages