Kentucky Employment Law Blog

Retaliation: How Specific Must Be the Plaintiff's Complaint?

To come within the protection of Title VII and the Kentucky Civil Rights Act, a plaintiff must establish that he or she challenged, opposed, protested and/or reported an employment practice that he or she reasonably believed was unlawful. The Sixth Circuit advised recently in Yazdian v. ConMed Endoscopic that while a vague complaint does not rise to the level of protected opposition neither must "the plaintiff's complaint be lodged with absolute formality, clarity, or precision."

Basically, the complaint or report must provide some reasonable grounds for the employer to conclude that the employee is protesting or reporting what the employee at least reasonably believes is some form of unlawful employment discrimination, not just protesting what the employees believe to be a generally unfair or wrong employment decision or practice. By way of example, the Sixth Circuit in Yazdian specifically cited each of the following six statements as constituting protected activity:

"I'm going to respond with counsel."
"I'm going to bring you up on charges before ..."
"Bring a lawsuit against [the supervisor]"
"Hostile work environment"
"I will have an attorney respond."
"I will be responding with charges."

Yazdian was discussed in an earlier post: Retaliation: What Is Protected Activity?

Robert L. Abell
www.RobertAbellLaw.com

 

Related articles

EEOC Finds That A 50 Year Old Law Bans Something It Doesn't Even Mention

U.S. Agency Rules for Gays in Workplace Discrimination

Retaliation: What Is Protected Activity?

EEOC Rules Title VII Does and Has Covered Sexual Orientation Discrimination

Religious waivers in the workplace

Workplace discrimination based on sexual orientation already illegal, per EEOC ruling

Firing for sexual orientation is illegal, says EEOC

Existing Law Prohibits Anti-Gay Workplace Discrimination, Federal Commission Rules

Federal 'gay' mania sparks push for civil disobedience

Hostile Work Environment Based on Age Is Actionable, Fifth Circuit Rules

Is a hostile work environment based on an employee's age a viable claim?  The Fifth Circuit ruled recently that a claim for hostile work environment based on age may be advanced under the Age Discrimination in Employment Act (ADEA) in Dediol v. Best Chevrolet, No. 10-30767 (5th Cir., September 12, 2011). The Fifth Circuit followed the Sixth Circuit's decision in Crawford v. Medina General Hosp., 96 F.3d 830 (6th Cir. 1996).

Robert L. Abell
www.RobertAbellLaw.com 

Failure to Disclose Retaliatory Motive Leaves Causation Chain Intact

To prove a retaliation claim a plaintiff must show a link between his or her protected activity and the adverse employment action taken against them. A common defense raised by employers is that the causation link was broken by the action of a third party or entity, which the employer asserts had no retaliatory motive whatsoever.  A police department's efforts to do so was discussed in a recent post, Police Disciplinary Board's Rubberstamp Does Not Break the Causation Chain of Supervisor's Retaliation, Third Circuit Rules. This scenario was again presented in the First Circuit's recent decision in Tuli v. Brigham & Women's Hospital, No 08-2026, 09-1597, 09-1603, 09-1731 (August 29, 2011).

Dr. Sagun Tuli, a female neurosurgeon at Boston' prestigious Brigham & Women's Hospital, was subjected to a sexually hostile work environment, as a previous post discussed, Accumulated Effect of Incidents of Humiliating, Offensive Comments Directed at Women and Work-Sabotaging Pranks, Taken Together, Can Constitute a Hostile Work Environment, First Circuit Rules.

Dr. Tuli also presented a retaliation claim the basis for which were numerous prior reports by her of sexually hostile and inappropriate conduct and statements by her supervisor, a Dr. Arthur Day, and a colleague, a Dr. Dong Kim. These reports were made to, among others, Dr. Anthony Whittemore, the hospital's medical director.  Dr. Tuli also expressed concerns with some patient care issues by Dr. Day. 

Eventually, Dr. Day, as Dr. Tuli's supervisor, made a presentation to the hospital's credentials committee that Dr. Tuli had emotional problems and was in need of anger management counselling.  The credentials committee conditioned renewal of Dr. Tuli's practice privileges on her completion of a counselling program. Subsequently, in response to a committee demand for more specific information, Dr. Whittemore re-presented Dr. Tuli's case, providing a "somewhat more balanced opinion, but mostly rehashing the issues Day" had earlier discussed. Neither Whittemore nor Day informed the credentials committee of Tuli's reports and complaints about Day's sexual harassment of her or her concerns regarding patient care issues. The committee stood by its requirement that Dr. Tuli undergo counselling. This requirement is subject of another earlier post, Is Employer-Ordered Counselling An Adverse Employment Action?

Since Dr. Tuli claimed that the credentials committee's requirement that she undergo counselling was an adverse employment action, the issue was whether the causative link between her protected activity -- reporting a sexually hostile work environment -- was broken because, as the First Circuit noted, "there is no suggestion that individuals on or involved with the committee other than Day harbored any improper animus or acted with retaliatory motive in voting to compel Tuli to seek and follow an evaluation."

The existence of the causation link, of course, is a question of fact for the jury. The First Circuit ruled that its finding was well-supported by the evidence, explaining as follows:

     But Day represented the Hospital as the head of his department in presenting the case against Tuli, cf. Staub v. Proctor Hosp., 131 S. Ct. 1186, 1191 (2011), and Whittemore–-who knew the background--re-presented it without qualifying information about Day. Day presented the case even though he had been the subject of adverse critiques by Tuli of his own performance as part of her official responsibilities and Day was the subject of her complaints about Day's own wrongful conduct toward her. It was for the jury to decide whether the committee was misled by Day in a way that altered the outcome.

    Nor was the jury obliged to think the causal chain broken by the second round of review. Whittemore was himself relying in part on information from Day, and he did not tell the committee of the complaints that Tuli had made about Day; although some members were apparently aware of some of the background, it was not disclosed at the meeting. Two committee members testified that knowledge of the complaints against Day would have been "important information."

Robert L. Abell
www.RobertAbellLaw.com

Is Employer-Ordered Counselling an Adverse Employment Action?

For a retaliation claim to be actionable the employee must have suffered an "adverse employment action." The Supreme Court explained in Burlington N. & Santa Fe Rwy. Co. v. White, 548 U.S. 53 (2006), would vary from case to case but would always be the type of action that "might have dissuaded a reasonable worker from making or supporting a charge of discrimination." This principle was applied in the First Circuit's recent decision in Tuli v. Brigham & Women's Hospital, No 08-2026, 09-1597, 09-1603, 09-1731 (August 29, 2011).

Dr. Tuli, a female neurosurgeon at Boston's prestigious Brigham & Women's Hospital, was subjected to a sexually hostile work environment as discussed in a prior post, Accumulated Effect of Incidents of Humiliating, Offensive Comments Directed at Women and Work-Sabotaging Pranks, Taken Together, Can Constitute a Hostile Work Environment, First Circuit Rules. Dr. Tuli also claimed that she was retaliated against for complaining of and reporting the conduct that formed the basis of her hostile work environment claim. She cited an order from the hospital's credentials committee that she obtain anger management counselling as a condition of having her staff and practice credentials renewed as an adverse employment action.

The First Circuit regarded it as a difficult question, recognizing the hospital's legitimate interest in protecting its patients from a doctor that needs treatment or counselling. However, in the context of this case, the court ruled that the jury could properly have found the ordered counselling an adverse employment action, explaining as follows:

      Tuli provided sufficient evidence from which a jury could conclude that the consequences of the obligatory counseling ordered by the Hospital--invasion of privacy, potential stigma, and possible impact on employment and licensing elsewhere--"might have dissuaded a reasonable worker from making or supporting a charge of discrimination." Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006) (internal quotation marks omitted). Obligatory counseling is not a typical adverse action but the impact here could be deemed sufficient by the jury if the action was prompted by a retaliatory motive.

Robert L. Abell
www.RobertAbellLaw.com

Is Evidence of Offensive Conduct Unknown to a Hostile Work Environment Plaintiff Admissible?

Is offensive conduct or statements unknown to a hostile work environment plaintiff admissible? The First Circuit answered yes in its recent decision, Tuli v. Brigham & Women's Hospital, No 08-2026, 09-1597, 09-1603, 09-1731 (August 29, 2011), which was discussed in a previous post, Accumulated Effect of Incidents of Humiliating, Offensive Comments Directed at Women and Work-Sabotaging Pranks, Taken Together, Can Constitute a Hostile Work Environment, First Circuit Rules.

The plaintiff, Dr. Sagun Tuli, a female neurosurgeon, alleged a hostile work environment based on sex and proved it, as the earlier post discussed, with ample evidence. On appeal, in addition to other alleged errors, the hospital also complained that evidence of comments by Dr. Tuli's two principal antagonists, a Dr. Arthur Kim and a Dr. Dong Kim, "as well as testimony from Eileen Hardy about a penis statue and cookie jar with women's underpants in Day's office and sexual drawings Day downloaded onto her Palm Pilot" were inadmissible. 

The First Circuit rejected the hospital's argument that the evidence was inadmissible because Tuli had not been aware of the conduct and/or statements, explaining as follows:

 If certain of the offensive conduct was unknown to Tuli at the time, it remained relevant for purposes of showing notice to the Hospital and toleration of a general climate of offensive remarks and displays. See Cummings v. Standard Register Co., 265 F.3d 56, 63-64 (1st Cir. 2001). Those of Kim's statements made off-site at a going-away party remained relevant to the hostile work environment claim, e.g., Parrish v. Sollecito, 249 F. Supp. 2d 342, 350-52 (S.D.N.Y. 2003), and Tuli reported Kim's conduct to [the hospital's medical director].

Robert L. Abell
www.RobertAbellLaw.com

 

Accumulated Effect of Incidents of Humiliating, Offensive Comments Directed at Women and Work-Sabotaging Pranks, Taken Together, Can Constitute a Hostile Work Environment, First Circuit Rules

Defining what constitutes an unlawful hostile work environment depends in large degree on the situation, the type of conduct involved, the relationship of the parties, the duration and frequency of the conduct and many other factors. The First Circuit took up this issue in its recent decision in Tuli v. Brigham & Women's Hospital, No 08-2026, 09-1597, 09-1603, 09-1731 (August 29, 2011).

Dr. Sagun Tuli, a female neurosurgeon at Boston's prestigious Brigham & Women's Hospital, was subjected to a several years long campaign by her supervisor, a Dr. Arthur Day, and a co-worker, Dr. Dong Kim, of demeaning and belittling comments and conduct that a jury found to establish an unlawful hostile work environment based on gender.

The First Circuit in affirming the jury's verdict recited the ample evidence of a hostile work environment as follows:

 2002-03: Day ignores Tuli at conferences by stating, "[L]et's ask the spine guys, Eric and Marc, what they think," and omitting her despite the fact that she is also a spine surgeon.

2004: At a graduation dinner and in front of a female resident, Day asks Tuli, "Can you get up on the table to dance so you could show them how to behave."

2004: In the summer, Tuli attends a bachelorette party for a coworker and sees a blow-up doll with a picture of her face attached to it.

2004: Day makes comments on different occasions: "You're just a little girl, you know, can you do that spine surgery?" "Oh, girls can do spine surgery?" "Are you not strong enough to use the hand instruments?"

2005: In February or March 2005, with his arm on Tuli's back, Kim says, "Why don't we leave this place and go to the Elliott Hospital so I can give you an oral exam"; "I think you're really hot"; and "I imagine you naked."

2005: Early in 2005, Day sits in on Tuli's teaching conference and disagrees with Tuli's lecture. He does this more than once, and Tuli does not believe that he did so during male doctors' teaching conferences.

2005: Residents, who are supervised by Day as residency director, ignore Tuli's pages, fail to assist her on rounds, and fail to show up for clinical duties. In the summer, Tuli notices that she is given less-experienced, junior residents for her cases.

6/05: Tuli becomes aware of a Hospital-affiliated party planned with "strippers and cages and beer kegs." Although it was supposed to celebrate the incoming chief residents, a new female chief resident was excluded. Day approves of the party and of outside funding for it.

2005: In September or October, Day and Tuli meet to clear the air, and Day says, "Our relationship is like that of lovers and you've cheated on me," with his hand on her arm; he also calls her "deranged." When she attempts to shake his hand at the end of the meeting around 10:00 p.m., he gives her a prolonged hug.

11/05: A resident throws Tuli into the scrub sink and then the garbage.

12/06: Kim states, "Oh, could you wear one of those belly dancing outfits and show us a dance?"

2007: Kim states that he would "like to have the opportunity to sexually harass" Tuli; Tuli observes him fondling a physician assistant at a department event.

5/07: Day looks in on Tuli's spine surgery and makes "some comment to the effect of whether [she] was able to do that case because [she] was a girl, are you sure you can do that, you're just a girl, something to that effect."

8/07: Day bars Tuli from spine oncology research saying that he had "a guy in mind" for the job.

Without specifying dates, Tuli also reported that Day had given her other prolonged hugs and had held her hand as they walked at work. She also testified that Day had questioned her authority in multiple teaching conferences and had made comments repeatedly about Tuli "being a little girl" and questioning whether she could do a "big operation"; the incidents noted above were particular examples of this recurrent behavior for which she could remember specific dates.

This scenario, a prolonged accumulation of repeated and similar incidents, supported the jury's finding of a hostile work environment, as the "accumulated effect of incidents of humiliating, offensive comments directed at women and work-sabotaging pranks, taken together, can constitute a hostile work environment." O'Rourke v. City of Providence, 235 F3d 713, 729 (1st Cir. 2001).

Dr. Tuli was represented by Michael S. Bonner and Gregory J. Aceto of the Boston law firm, Johnson & Aceto, LLP.

Robert L. Abell
www.RobertAbellLaw.com

 

 

Doctor Subjected to Sexual Harassment and Hostile Work Environment by Clinic Owner, Fourth Circuit Rules

A doctor employed at a medical clinic could show that she was subjected to sexual harassment and hostile work environment, the Fourth Circuit Court of Appeals recently ruled in EEOC v. Fairbrook Medical Clinic, No. 09-1610 (June 18, 2010).  Characterizing the facts as indicating "a series of graphic remarks of a highly personal nature directed at a female employee by the sole owner of an establishment," the court reversed a summary judgment and remanded the case for trial.

The case highlights and illustrates a number of common arguments raised by employers in sexual harassment cases including the following:

• The clinic claimed that there was no discrimination based on sex because the doctor owner "was a generally crude person who made vulgar comments to men and women alike." The court rejected this argument and noted that "the use of "sex-specific and derogatory terms" indicates intent to demean and discriminate against women."

 

• The clinic had a relaxed and at times crude work environment in which employees including plaintiff made off-color jokes and this precludes any finding of a hostile work environment. The court rejected this argument stating that "there is a difference between "generalized" statements that pollute the work environment and "personal gender-based remarks" that single out individuals for ridicule."

 

• The doctor cannot claim that a hostile work environment existed because she occasionally made off-color remarks herself. The court answered: "a plaintiff's claim is not defeated solely because she engages in some crude behavior. ... Plaintiff's use of foul language or sexual innuendo in a consensual setting does not waive her legal protections against unwelcome harassment."

 

• There was no hostile work environment because the doctor did not have to miss any work and her job performance was not impaired.The court answered: "The fact that a plaintiff continued to work under difficult circumstances is to her credit, not the harasser's. ... The critical inquiry is not whether work has been impaired, but whether working conditions have been discriminatorily altered."
  
  Robert L. Abell
  www.RobertAbellLaw.com

Racial and Sexual Harassment Results in $1 Million Plus Judgment Against Whirlpool

Racial and sexual harassment creating a hostile work environment has resulted in a $1 million plus judgment against Whirlpool Corporation.  Federal district judge John T. Nixon found that a hostile work environment was created based on the following:

Baker frequently directed songs and explicit commentary at Freeman. While isolated
episodes of teasing or sexual comments do not rise to the level of a hostile work environment,
the Court finds that Baker harassed Freeman on an almost daily basis, both during breaks and
while he worked in close proximity to her on the Line. As the months wore on, Baker’s
harassment became more and more threatening, as he began mumbling and pointing at Freeman and eventually assaulted her.

Whirlpool's argument that the conduct was not sex-based and therefore not illegal sex discrimination:

Non-sexually explicit harassing behavior that is “directed at women and
motivated by discriminatory animus against women satisfies the ‘based on sex’ requirement.”Id. Multiple witnesses describe Baker as mumbling and staring at Freeman and her co-worker Chinica Lillard, also African-American, preceding the assault. After punching Freeman, Baker verbally threatened Lillard as well and threw a pipe at her. The Court finds that the assault was the final harassing act in a campaign of harassment that Baker targeted at Freeman because of her sex. Any reasonable person would find Freeman’s working environment to be hostile and abusive.

The Court entered a judgment in excess of $1 million in Freeman's favor.  You can read a copy of the Court's opinion, Freeman v. Whirlpool Corporation.

Robert L. Abell
www.RobertAbellLaw.com

When Does A Racial Hostile Work Environment Become Unlawful?

In a racial harassment case an unlawful the hostile work environment exists where the harassment is severe or pervasive.  Recently, the Fourth Circuit Court of Appeals in EEOC v. Central Wholesalers, No. 08-1181 (July 23, 2009), described the type of facts that could establish an unlawful hostile work environment:

"We also conclude that a reasonable jury could find that the race-based harassment was objectively severe or pervasive.  Three of Medley's co-workers in Inside Sales used the word n****r, and at least one of them used it 'pretty much everyday.'  Moreover, during the November 10 incident, DaBay called Medley a black stupid n****r, a black n****r, and a black stupid b***h, among other derogatory terms.  In addition, two of her co-worker's kept blue-colored mop-head dolls in their offices which they had hanging by nooses tied around the dolls' necks.  As in past cases, 'we cannot ignore the habitual use of epithets here or view the conduct without an eye for its cumulative effect.'" 

Robert L. Abell
www.RobertAbellLaw.com

When Does Sexual Harassment Become Unlawful?

To rise to the level of an unlawful hostile work environment based on sex the gender-based harassment must be severe or pervasive.  The Fourth Circuit Court of Appeals in EEOC v. Central Wholesalers, No 08-1181 (July 24, 2009), recently described a hostile work environment where it could be found that the sexual harassment was severe or pervasive:

"We conclude that a reasonable jury could find that the gender-based harassment was objectively severe or pervasive.  The evidence shows that Mike, Tony, and Green all regularly referred to women as b***hes.  Moreover, DaBay called Medley a b***h a number of times during the November 10 incident.  In addition, Mike -- whose cubicle was right next to Medley's -- had a Playboy calendar on his desk, kept Playboy magazines in his cubicle, hung a Playboy poster on his wall, watched pornography on his computer in Medley's presence, used a pornographic screensaver depicting partially naked women, and placed the screwdriver in the Halloween decoration in a sexual manner more than once.  This evidence is certainly sufficient to create a triable issue on whether the gender-based harassment was objectively severe or pervasive."

Robert L. Abell
www.RobertAbellLaw.com