Outten & Golden: Empowering Employees in the Workplace

Archive for June, 2006

Retaliation Means Retaliation, Says the Supreme Court

Thursday, June 22nd, 2006

A 9-0 decision in favor of employees from the Roberts’ Supreme Court? Some didn’t think it was possible, but today workers received a break in the case of Burlington Northern v. White. The decision means that a worker who has faced retaliation, but has not been fired, denied a promotion, or subject to an “ultimate employment action,” can still bring a retaliation lawsuit as long as the action taken by the employer “would have been materially adverse to a reasonable employee or applicant.” Not only can plaintiff Sheila White, who was reassigned to a less desirable position and suspended without pay (but later reinstated with backpay) proceed with her lawsuit under the Supreme Court’s ruling, but other employees who have faced retaliation will find it easier to do so as well.

Sheila White was the only woman who worked in the Maintenance of Way department at Burlington Northern’s (BN) Tennessee Yard in Memphis. White had experience operating a forklift, but was hired by BN in 1997 to be a “track laborer,” a job that involves removing and replacing track components, transporting track material, cutting brush, and clearing litter and cargo spillage from the right-of-way. Shortly after she started in the job, however, a forklift position opened up and White was reassigned to operate the forklift, although she continued to perform some of the track laborer tasks. (See Burlington Northern v. White decision.)

White had problems right away with her supervisor Bill Joiner, who repeatedly told her that women should not be working in the Maintenance of Way department and made insulting and inappropriate remarks to her in front of her male colleagues. After White complained to Burlington officials, Joiner was suspended for ten days and ordered to attend a sexual harassment session.

When the Burlington official who had hired White, Marvin Brown, told White about Joiner being disciplined, he also told her she would be reassigned from forklift duty and would return to performing only track labor tasks. Brown explained to White that co-workers had complained that it was only fair for a “more senior man” to have the “less arduous and cleaner job” of forklift operator. Shortly thereafter, Ms. White filed a complaint with the Equal Employment Opportunity Commission (EEOC), claiming that the reassignment was due to illegal gender-based discrimination and retaliation for her complaints against Joiner.

White’s problems at work continued: in December, she filed a second retaliation charge after claiming that Brown had placed her under surveillance and was monitoring her daily activities. Later in the month, she got into an argument with her immediate supervisor, and was suspended without pay for being insubordinate. When White filed an internal grievance, BN concluded that she had not been insubordinate, and reinstated her with back pay for the 37 days of pay she lost as a result of the suspension.

But that was too late for Christmas that year. “That was the worst Christmas I had out of my life. No income, no money, and that made all of us feel bad,” she shared. (See New York Times article.) Ms. White was so depressed that she sought medical treatment, and filed an additional retaliation charge with the EEOC based on the suspension.

When White’s case moved forward, BN claimed that White had not been retaliated against. They argued that changing White’s work duties could not meet the legal standard for retaliation, since she remained in the same job and under the same job description as when she was hired. They also claimed that since White was reinstated with pay, she didn’t suffer any legally recognizable harm for the period during which she was suspended.

Part of the reason this case reached the Supreme Court is because different courts had different standards for what constitutes illegal retaliation. Some of the most pro-employer courts required the retaliation to reach the level of an “ultimate employment action,” such as actions affecting “hiring, granting leave, discharging, promoting, and compensating.” Other courts held that illegal retaliation was any material action which “dissuaded a reasonable worker from making or supporting a charge of discrimination,” which meant that it didn’t have to relate to the employment setting, and could stop short of being an ultimate action. The Sixth Circuit, from which this case was appealed, employed an intermediate standard, but one identical to the standard required to prove discrimination, which said that a plaintiff must show an “adverse employment action,” which it defined as a “materially adverse change in the terms and conditions” of employment.

When argued before the Supreme Court, the employer BN did not argue for the most restrictive interpretation, but argued that the Sixth Circuit had misapplied its own standard. The plaintiff, Sheila White, however, instead of resting on the standard under which she had won below, argued for the least restrictive standard of all, that there is no minimum threshold at all for actionable retaliation so long as the action is adverse to the employee and is because of the employee’s protected conduct.

And interestingly (as well as disappointingly) the Solicitor General, arguing on behalf of the U.S. Government, disavowed the retaliation standard promoted by the federal EEOC. The S.G.’s office nominally supported White, by arguing for the standard promoted by BN, but claiming that White should have succeeded under that standard. It appears that the EEOC was muscled out by the more conservative Department of Justice when it came to deciding what the government’s position should be. (See SCOTUSblog, Oral Arguments in Burlington v. White).

The result, however, was a surprising win for employees. The Supreme Court adopted the standard already in place before a couple of appellate courts. While it was not quite as relaxed a standard as White’s attorneys had argued for, it is nonetheless pro-employee and likely to keep open most avenues for employees attempting to prove retaliation.

Justice Breyer, writing for a unanimous Supreme Court, establishes requirements for retaliation cases to move forward: 1) the retaliation must be “materially adverse,” — significant as opposed to trivial; and 2) such that it might have “dissuaded a reasonable worker from making or supporting a charge of discrimination.” It does not have to be confined to employment or occur at the workplace, however, as long as it is something more than the”petty slights or minor annoyances that often take place at work and that all employees experience.”

When the standard was applied to White’s case, the $43,500 in damages she received from a jury was upheld, as it was reasonable for a jury to conclude that changing White’s job and suspending her without pay were material adverse and designed to dissuade her from complaining about the discrimination she suffered. After fighting for nine years to address the retaliation she suffered, Sheila White will finally prevail.

Before you get too excited about this important victory for workers, however, there is some bad news, which is that Justice Alito may be as hostile to employment cases as we all feared when opposing his nomination to the Supreme Court. Although Justice Alito agreed with the result, he wrote a separate concurrence saying that he thought the retaliation standard should be more restrictive and would require a “adverse employment action,” similar to the requirement for discrimination cases.

He thought White met that standard, but the separate concurrence means that Alito’s interpretation is to the right of every single other member of the Supreme Court, including Justices Scalia and Thomas. It did not matter in this case, but very well may matter in the future in decisions where the Court is more divided. For workers who don’t think their votes matter, here is a very concrete example where having a different president would have prevented nominees like Alito from reaching the Court.

Retaliation cases are an important tool for workers who may have more difficulty proving that actions taken against them occurred for discriminatory reasons, but find their job situation goes downhill significantly when they try to complain about discrimination. This decision helps ensure that our laws against retaliation is not considered the poor stepchild when compared to antidiscrimination laws, but continue to be a strong and vital way to protect employees trying to ensure that their rights are not trampled upon by their employers. Congratulations are in order to Sheila White, her attorney Donald Donati, and all those who fight back against workplace discrimination and face even worse conditions as a result.

More Information:

Workplace Fairness: Retaliation
SCOTUSblog: List of Briefs Filed by Parties and Amici
New York Times: High Court Affirms Award in Discrimination Case
The American Prospect: Fighting for Fair Treatment

What Will It Take for Bosses to Do Better?

Wednesday, June 7th, 2006

A recent blog posting from leading workplace commentator Bob Rosner got me to thinking. Entitled “Revenge of the Employees,” Rosner talks about bosses who are now forced to suck up to their employees in order to keep them on board in a tightening labor market. In thinking about all the ways that employee advocates now work mightily to transform the workplace, by providing information to make employees better informed, to promoting unionization, to filing lawsuits when all other measure fail, it makes me wonder whether shifting demographics will one day cause all of those other kinds of efforts to pale in comparison. Probably not, but it’s a fantasy worth exploring.

Bob Rosner, author of the column “Working Wounded,” and the Working Wounded blog, tells the oh so sad tale of a boss (one of Rosner’s readers who e-mailed him) who was told by his boss when he started at the bottom of the workplace food chain, “It’s my way or the highway.” So he had to do exactly as his boss said and was treated like “crap.” Just like those who were abused children are statistically more likely to become abusers themselves, Rosner’s reader couldn’t wait to ascend the corporate ladder, so that he too could treat his employees like crap. But unfortunately for him (and fortunately for his underlings) a talent shortage intervened, and he had to “suck up to his employees” instead. Rosner’s reader wondered, “When will it be my turn?” referring to when he can be abusive again.

But as Rosner pointed out, that day may never come. There are 76 million baby boomers and only 44 million Gen-Xers, which according to Rosner, “means we’re going to have to run an economy with 32 million boomers who are starting to think more about weekends and Winnebagos than work. Unfortunately for the boss who wrote the e-mail above, the practice of sucking up to employees is likely to only increase for bosses and companies interested in keeping their best talent.” We’d like to think that treating employees with enough respect to retain their loyalty would just be a good business practice, regardless of the numbers, but perhaps only a massive labor shortage, brought about by major demographic shifts, will ultimately transform the balance of power in the workplace to create more worker-friendly environments.

Rosner says, “As we go from a buyers’ market (the employers have most of the clout) to a sellers’ market (where employees have more leverage), we’ll have a remarkable opportunity to create a better workplace….Call me an optimist, but I believe that corporations will be more motivated than they have ever been to create healthy, sane work environments for workers.” However, he acknowledges that he’s analyzing a long-term demographic shift — not one that is going to happen overnight — so we’ll all just have to “wait and see how it plays out.”

In the meantime, our efforts at Workplace Fairness using the Internet to educate and mobilize workers continue, as our website is visited around 200,000 times each month. There are so many situations where you can only stand up to your employer if you know what your rights are, and we hope that our site’s “Your Rights” section, with over 150 pages of content, provides valuable assistance in that regard. There are also thousands of lawyers and other advocates who advise and counsel workers, and represent them in lawsuits when necessary, to ensure compliance with the laws that protect workers, that all too often are ignored by some employers.

And regardless of their philosophical differences, the AFL-CIO and the Change to Win Coalition and their member unions, as well as groups like American Rights at Work, realize that reversing the decline in union membership we’ve seen over the last several decades will also make a difference in how workers are treated, and how much “crap” they’re forced to endure. Whether it’s stagnant wages in blue-collar jobs or the loss of pension, healthcare and other benefits, unions are fighting on the front lines to preserve good jobs and good wages for many workers who would otherwise have little leverage against their employers.

So perhaps our sons and daughters won’t have to worry so much about being mistreated by bosses or having livable wages, and many of the policy debates featured here in this blog or in discussions of workplace conditions in the early 2000s will one day seem quaint. But in the meantime, there’s lots of work to do to ensure workers aren’t treated like crap, just because it’s possible when there’s a surplus of those who need jobs. “Revenge of the Employees” may be a long day in coming, but there’s plenty to do now so there’s no need for future revenge.

When Just Doing Your Job Lands You in Trouble

Thursday, June 1st, 2006

You would think all employers, and especially government employers, would want employees to perform their jobs to the best of their abilities. Especially for employees whose job it is to ferret out wrongdoing, you might think that it’s in the government’s interest — and taxpayers’ interest as well — to encourage those employees to do their jobs really well. Not according to a Supreme Court decision issued this week, however. The message to government employees from the Court’s ruling in Garcetti v. Ceballos is that if you’re a public employee whose job it is to uncover wrongdoing, you better not do that too well. Because if your employer isn’t happy with those efforts and decides to retaliate, you might not have much in the way of recourse.

It was the result that everyone feared when it was announced that the case had to be reargued after Justice O’Connor left the Supreme Court. A 4-4 tie between the remaining justices would mean that O’Connor’s replacement, Justice Samuel Alito, was needed to break the tie. (See Do-Over article.) Since Alito was needed, it was assumed that the remaining justices were deadlocked, and given Alito’s history and background, it was feared that he would not be inclined to support the interest of employees. Alito did not disappoint — at least not those who supported his nomination.

Richard Ceballos was a deputy Los Angeles County prosecutor. After a defense attorney complained that a sheriff’s deputy lied on an affidavit in order to obtain a search warrant in a criminal case, Ceballos investigated the allegations. Ceballos’ investigation uncovered that the affidavit made what he considered to be serious misrepresentations, so Ceballos wrote a memo to his supervisors recommending that the case be dismissed. Ceballo’s supervisors disagreed with his recommendation, and continued to prosecute the case anyway.

During a court hearing to challenge the warrant, Ceballos was asked by the defense to testify about the affidavit and his investigation. The defense’s challenge to the warrant was unsuccessful. Afterwards, Ceballos claimed that he was retaliated against because he did his job of investigating the allegations and reporting his findings to his superiors. Ceballos was reassigned from his position, transferred to another courthouse, and denied a promotion, all which he said was a result of the memo. (See Garcetti v. Ceballos decision.)

It was Ceballos’ job to investigate such irregularities when brought to his attention, and he was legally and ethically bound as a prosecutor to disclose the results of his findings, to prevent his office from proceeding with cases that rely on illegally-obtained evidence. But in his case, he would have been better off if he had never written the memo (or written it in a way that covered up what he thought was the sheriff department’s misrepresentation). Just what we need to hear in an era of government secrecy, right?

According to the Supreme Court majority,

That consideration—the fact that Ceballos spoke as a prosecutor fulfilling a responsibility to advise his supervisor about how best to proceed with a pending case—distinguishes Ceballos’ case from those in which the First Amendment provides protection against discipline. We hold that when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.

Ceballos wrote his disposition memo because that is part of what he, as a calendar deputy, was employed to do. It is immaterial whether he experienced some personal gratification from writing the memo; his First Amendment rights do not depend on his job satisfaction. The significant point is that the memo was written pursuant to Ceballos’ official duties. Restricting speech that owes its existence to a public employee’s professional responsibilities does not infringe any liberties the employee might have enjoyed as a private citizen. It simply reflects the exercise of employer control over what the employer itself has commissioned or created.

(See the majority opinion, written by Justice Kennedy.)

So a governmental employer who prefers to commission B.S. can pretty much expect that it’s going to get what it asks for from now on. There’s no longer not much incentive to produce the truth, is there?

If Ceballos had gone to a community meeting about police abuses, and discussed his concerns there about the falsification of warrants, he would have more legal protection for testifying as a “private citizen” than he does when writing a memo to his supervisor about his concerns. And of course, if he had not conducted a thorough investigation and/or suppressed his findings instead of honestly reporting them to his superiors, he’d be in the best shape of all. That’s not the result you really want to see in governmental offices making decisions about how to spend taxpayer dollars and how to enforce the law and protect the public, is it?

More Information:

Workplace Fairness: Retaliation: Public Employees and First Amendment Rights (note Question 10 has been updated to reflect the decision)

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