retaliation
May 05, 2022
September 12, 2020
Causation and Lapse of Time in Retaliation Cases
Causation -- the link between protected activity and an adverse employment action -- is usually time-bound and temporally proximate, meaning the adverse action follows fairly soon on the heels of the protest or report. But what about when the lapse of time is greater?
The Sixth Circuit discussed recently in Kirilenko-Ison v. Bd. of Educ. of Danville "two situations in which even a long lapse of time is not fatal to a plaintiff's causation showing." One is where the employer "took advantage of its first meaningful opportunity to retaliate against the [employee], even if that opportunity did not arise until several months after the plaintiff's protected conduct." Second, even if more than enough time has passed to preclude a finding of causation based on close timing alone, "an employee can still prevail if she couples temporal proximity with other evidence of retaliatory conduct to establish causality."
The plaintiffs in this case were two nurses, who voiced strident concerns about the school system was looking after two students with difficult medical conditions. One of the nurses engaged in the protected activity in May - December 2016; she was working under a three-year contract funded by a grant that lapsed at the end of June 2017. She sought full-time employment in the Fall 2017 and was not hired, despite a very solid record. The failure to rehire her was an adverse employment action, and it was "the first meaningful opportunity the school board had to retaliate against her." Therefore, the Sixth Circuit reversed a summary judgment for the school board by the district court.
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February 22, 2018
The Cat's Paw; Proximate Cause and the Kentucky Civil Rights Act
For reasons beyond explaining employment discrimination law has incorporated the "cat's paw doctrine" to dress up what is a proximate cause analysis. The "cat's paw doctrine" appeared in the Court of Appeals recent decision, Lindsey v. Bd. of Trustees of the University of Kentucky.
Tonya Lindsey, an African-American woman, began working in healthcare for UK in 1990. She claimed that she was passed over for a promotion on three separate occasions on account of her race and gender. She later added a retaliation claim as well, one arising, as Lindsey pleaded her complaint, from the actions of her supervisor, Lisa Turner. Turner actually became Lindsey's supervisor after Lindsey had filed the discrimination suit.
The Fayette Circuit Court granted a summary judgment to the defendants, a decision that appeared to leave Lindsey's case in the shallows at best. Turner, a couple of months later, filed a cross-claim against UK and claimed, among other things, that "she was pressured by her superiors to closely scrutinize Lindsey so that Lindsey could be fired" and that he succumbed to this pressure out of fear for her own job. This caused the circuit court to vacate the summary judgment. To shorten the story, Turner later dismissed her cross-claim, and the circuit court granted summary judgment again to the defendants and this time on all claims.
The Court of Appeals reversed as to the retaliation claim, and invoked the "cat's paw" in so doing. Turner had not known of Lindsey's discrimination suit, but her assertion that she had been directed to dig up dirt, so to speak, on Lindsey and her further assertion that she feared for her job if she did not do so created a fact issue as to whether Turner was simply the unwitting and proximate cause of an unlawful retaliatory intent by the higher-ups at UK. The Court explained as follows:
This is known as the "cat's paw" theory of liability. A plaintiff alleging liability under the cat's paw theory seeks "to hold his employer liable for the animus of a supervisor who was not charged with making the ultimate employment decision." Thus, even if Turner herself lacked discriminatory intent, UK many nonetheless be liable if Turner's decision to recommend Lindsey's termination was caused by one of its agents acting with a discriminatory intent.
Lindsey was represented by the now-late William C. Jacobs. Bill Jacobs was one of Kentucky's great lawyers; he represented the plaintiff in the landmark Kentucky sexual harassment case, Meyers v. Chapman Printing, 840 S.W.2d 814 (Ky. 1992), and represented the plaintiff in a case that changed the way public library systems are funded in Kentucky, LFUCG v. Hayse, 684 S.W.3d 301 (Ky. App. 1984).
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April 20, 2016
Front Pay in Discrimination Cases for the Younger Plaintiff
"Front pay" or future economic damages ("lost future wages" being another way to put it) is an available remedy in employment discrimination and retaliation cases. Their determination is more complicated when the plaintiff is younger, has a long working career ahead and may not yet have a much-developed work history. But a plaintiff's "young age" does not preclude "front page" as the Sixth Circuit ruled recently in Varlesi v. Wayne State University, a pregnancy discrimination and retaliation case.
The plaintiff, Tina Varlesi, an excellent student working on her M.S. in Social Work at Wayne State, was subjected to pregnancy discrimination and eventually ejected from the graduate program rendering her unable to complete the requirements for her degree. Her dismissal from the program not only kept her from getting her degree, but she was unable to enroll in another graduate program and a previous job offer contingent upon her completion of the program evaporated. A jury awarded her $848,890 in damages including $200,000 in future economic losses or "front pay."
On appeal, Wayne State University argued, among many other things, that "any award of future damages would be too speculative as a matter of law due to Varlesi's young age." This argument, along with all the others advanced by the employer, was most emphatically rejected by the Sixth Circuit:
The defendant cites several cases of support for the proposition that Varlesi's young age necessarily rendered any future damages unavailable as a matter of law, but none of those cases actually holds (or even suggest) that her "young age" is determinative. And that is not the law. The law requires that, because future damages (a.k.a. front pay) are "often speculative," the District Court must have "flexibility and wide discretion" in crafting such a remedy. Shore v. Federal Express, 42 F3d 373, 378 (6th Cir 1994). And there are certain factors that must guide the award of future damages, including mitigation of damages, "the availability of employment opportunities, the period within which one by reasonable efforts may be reemployed, the employees working life expectancy, [and] the discount tables to determine the present value of future damages," among others. Roush v. KFC, 10 F3d 392, 399 (6th Cir 1993). Varlesi provided evidence about, and the District Court considered, these factors, including her mitigation efforts, her inability to enroll in other graduate programs after her failure at WSU, her job search and the prior job offer, and Bureau of Labor statistics.
Robert L. Abell
www.RobertAbellLaw.com
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April 19, 2016
The Business-Judgment Instruction in Discrimination and Retaliation Cases
The business-judgment jury instruction used in discrimination and retaliation cases is to the effect that an employer has discretion over business judgments even if exercised wrongly. It is a means by which employers seek to obfuscate issues (such as by jurors confusedly equating exercised wrongly with exercised unlawfully) and escape liability for discriminatory and/or retaliatory employment practices. But are employers entitled to the business-judgment instruction as a matter of course? "No" answered the Sixth Circuit recently in Varlesi v. Wayne State University, a pregnancy discrimination and retaliation case in which a jury awarded the plaintiff $848,690 in damages.
The plaintiff, Tina Varlesi, was working on her M.S. in Social Work at Wayne State University, a two-year graduate degree program consisting of both classroom and "field" work at an agency. Varlesi was a star student in her first year. She received "excellent grades in her classes" and perform so well and her fieldwork that "one agency even offered her a job, to commence after she obtained her degree." arlesi became pregnant following her first year, "although she was not married, and during her placement in the fall semester of her second year, the trouble started (though her classroom grades remained excellent)."
The "trouble," despite Varlesi's repeated complaints and despite her continued excellence in her class work, resulted eventually in her being dismissed from the program. She filed suit claiming pregnancy discrimination and retaliation in violation of Title IX and Michigan's Elliott-Larsen Civil Rights Act. The jury awarded her damages of $898,690 ($148,690 economic; $200,000 future; and $500,000 non-economic).
On appeal, the employer, Wayne State University, argued, among other things, that the District Court erred in rejecting its request for a "business-judgment instruction, i.e., Wayne State had discretion over its business judgments, even if they are wrong." This argument was summarily rejected by the Sixth Circuit which explained:
But the decision to discriminate and retaliate against a student and then cover it up, is not a business judgment.
The Sixth Circuit's opinion was authored by Circuit Judge Alice Batchelder, who is not known as generally receptive to plaintiffs in employment discrimination cases, joined by Circuit Judges David McKeague and Jane Stranch.
Robert L. Abell
www.RobertAbellLaw.com
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April 02, 2016
Employer Not Entitled to Employment-At-Will Jury Instruction in Retaliation Case
Most employees in Kentucky are at-will employees, meaning their employment can be terminated at any time and for about any reason - no matter its moral indefensibility - except for the limited few statutory, constitutional and other legally-protected reasons. Put another way, the employment-at-will doctrine means an employee can be fired for any reason except an illegal one. Retaliation against an employee is an illegal reason to fire an employee in Kentucky, one that is specifically prohibited by the Kentucky Civil Rights Act, KRS 344.280.
In its important recent decision in Powell v. Asbury University, the Kentucky Supreme Court considered whether the trial court should have given an employment-at-will jury instruction as requested by the employer. The Court found this argument to have "no merit" and explained as follows:
The instructions given ... were sufficient to convey the applicable law to the jury. They required the jury to find that Powell engaged in protected activity in complaining about perceived sex discrimination; that she had a good-faith, reasonable basis for her complaints; that she suffered adverse employment action; that Asbury officials responsible for the action against her were aware of her complaints; (unnecessarily) that her complaining about sex discrimination was a substantial and motivating factor in the adverse employment action; and that but for her complaining about sex discrimination, the adverse employment action would not have been taken. In other words, the instructions properly directed the jury to find in Powell's favor if they believed from the evidence that Asbury's retaliatory animus against Powell's protected activity was a but-for cause of the non-renewal of her employment. No more was required. That Powell was an at-will employee is no defense to illegal retaliation.
Powell is an important decision regarding claims under the Kentucky Civil Rights Act and particularly retaliation claims, as has been noted in numerous prior posts: Retaliation Claims Under the Kentucky Civil Rights Act, But For Causation and Retaliation Claims Under the Kentucky Civil Rights Act, Retaliation Need Only Be A Factor Not the Only Factor to Violate the Kentucky Civil Rights Act, and Retaliation, the Temporal Proximity Doctrine and an Employee's Continuing Complaints about Discrimination.
Robert L. Abell
www.RobertAbellLaw.com
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March 29, 2016
Retaliation, the Temporal Proximity Doctrine and an Employee's Continuing Complaints about Discrimination
In 2005, Deborah Powell, at the time the women's basketball coach at Asbury University in Wilmore, Kentucky, filed a grievance protesting what she regarded as sex discrimination in the terms and conditions of her job. Basically, the grievance procedure went nowhere and Powell continued her complaints regarding the disparity of resources between the men's and women's teams, the differing budget processes, differing scheduling allowances, differing and more onerous work loads that she maintained as compared with her male counterpart and her exclusion from an athletic department review and audit process. She pushed these complaints on into January 2008. She was fired the following month in February 2008.
After she was fired, Powell filed a retaliation claim under the Kentucky Civil Rights Act, claiming that she was fired in retaliation for her grievance and complaints about gender discrimination directed at her and at the women's sports more generally. A jury returned a verdict awarding her some $388,000 in damages. The Lexington Herald-Leader also reported: Former Asbury Women's Coach Awarded Nearly $400,000 in Discrimination Lawsuit.
On appeal to the Kentucky Supreme Court, Asbury argued that the time lapsed between her grievance in late 2005 and her firing in February 2008 precluded a finding that there was a connection between the two, more specifically, that the alleged retaliation - Powell's firing - was too temporally remote from her protected activity. The Court had none of this, observing that Powell's complaints and reports of discriminatory practices were not limited to her grievance:
Certainly, the 2005 written complaint, standing alone, would be insufficient to support a claim of retaliation for the 2008 discharge given the lack of any temporal proximity between the written complaint and her termination.
But Asbury's argument misconstrues the significance of Powell's repeated oral complaints to her superior and others throughout the intervening years. Cf. Wasek v. Arrow Energy Servs., Inc., 682 F.3d 463, 469 (6th Cir. 2012)(stating that "complaining about allegedly unlawful conduct to company management is classic opposition activity" to sustain Title VII retaliation claim despite employee having never filed a formal complaint with EEOC); Johnson v. Univ. of Cincinnati, 215 F3d 561, 580 (6th Cir 2000)("The [EEOC] has identified a number of examples of 'opposing' conduct which is protected by Title VII, including complaining to anyone (Management, unions, other employees, or newspapers) about allegedly unlawful practices ...").
And we find unpersuasive Asbury's argument that Powell's oral complaints to AD Kempf were merely "petty workplace gripes" that were unrelated to the terms of her employment and thus not protected activities under the KCRA. Powell's complaining encompassed what she perceived to be sex-based discrepancies in the terms and conditions of her employment by the school's athletic department as a head coach and intramural sports coordinator vis-Ã -vis her male counterparts. Therefore, her complaints involved a lead sex-based employment discrimination made unlawful by KRS 344.040(a) and, as such, were protected activities under KRS 344.280(1).
The Court's analysis -- the opinion was unanimous and authored by Justice Mary Noble -- here follows the well-reasoned discussions of other courts that have been discussed in other posts: Retaliation & Temporal Proximity - "We reject the idea that the passage of a particular amount of time between protected activity and retaliation can bar the claim as a matter of law." and Temporal Proximity When the Employer Retaliates at the Earliest Opportunity, Although 15 Months Later.
The Powell decision is significant under Kentucky law as I've discussed in earlier posts: Retaliation Claims Under the Kentucky Civil Rights Act, But For Causation and Retaliation Claims Under the Kentucky Civil Rights Act and Retaliation Need Only Be A Factor Not the Only Factor to Violate the Kentucky Civil Rights Act.
Robert L. Abell
www.RobertAbellLaw.com
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March 27, 2016
Retaliation Need Only Be A Factor Not the Only Factor to Violate the Kentucky Civil Rights Act
[W]e must take this opportunity to make clear that retaliatory motive need not be the sole, or even primary, cause of the challenged employment action; rather, it need only be a (not 'the') but-for cause of the decision.
This causation standard for claims under the Kentucky Civil Rights Act the Kentucky Supreme Court clarified recently in Asbury University v. Powell.
The Court further advised:
The fact that other, non-retaliatory reasons may have contributed to an adverse employment action does not necessarily preclude recovery, so long as there is evidence sufficient to permit the factfinder to conclude that unlawful retaliatory motive was so integral to the adverse action that more likely than not the action would not have been taken had the employee not engaged in protected activity.
The upshot of all this: retaliation or discrimination need not be the only factor, reason or basis for an adverse employment action to sustain a claim under the KCRA but it must be a significant factor.
Powell is an important decision for Kentucky discrimination and retaliation law and been the subject of previous posts: Retaliation Claims Under the Kentucky Civil Rights Act and But For Causation and Retaliation Claims Under the Kentucky Civil Rights Act.
Robert L. Abell
www.RobertAbellLaw.com
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March 25, 2016
But For Causation and Retaliation Claims Under the Kentucky Civil Rights Act
Since the mid-1990s jury instructions in retaliation and discrimination cases under the Kentucky Civil Rights Act have stated something to the effect the discrimination or retaliation must be found to have been a substantial and motivating factor but for which the injury would not have occurred. These instructions were derived from two cases, Meyers v. Chapman Printing, 840 S.W.2d 814 (Ky. 1992) and First Property Management v. Zarebidacki, 867 S.W.2d 185 (Ky. 1994). An example is the jury instructions in an age discrimination case I tried in 2000, Wells v. Columbia Gas, a case tried when it was still possible to recover punitive damages for violations of the KCRA.
The Kentucky Supreme Court has trimmed the jury instructions for both retaliation and discrimination claims under the KCRA in its recent decision in Asbury University v. Deborah Powell. The trimming is the removal of the "substantial and motivating factor" language, which the Court explained as a redundancy:
If the ultimate question is answered by a "but for" analysis, which the plaintiff must prove to prevail, that is, that the adverse employment action would not have occurred but for her protected conduct, is it really necessary that a plaintiff also have to prove that her conduct was a "substantial and motivating factor"?
The simple answer is that if the adverse action would not have occurred but for her protected conduct, she has more than shown that such was a substantial and motivating factor for the adverse action. To that extent, this language is surplusage. In finding or not finding "but for" causation, the jury has necessarily found or not found that the plaintiff's conduct was a substantial factor in the adverse employment action.
Consequently, while we reiterate our prior decisions in saying that the appropriate causation standard in retaliation cases is "but for" causation, we hold that the "substantial and motivating factor" is surplusage and should not be included in the jury instruction.
So a model instruction and interrogatory for a retaliation claim under the KCRA would be as follows:
Instruction: Under the law of Kentucky, it is unlawful for an employer to fire an in retaliation for the employee's opposition to a discriminatory employment practice. It is not necessary for the retaliatory motive for to be the sole or only reason for the firing; it is sufficient if retaliation is a factor for the termination.
Interrogatory: Do you believe from the evidence that plaintiff would not have been retaliated against and fired but for her protected activity?
Powell was the subject of a prior post: Retaliation Claims Under the Kentucky Civil Rights Act.
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March 24, 2016
Retaliation Claims Under the Kentucky Civil Rights Act
The Kentucky Civil Rights Act (KCRA) prohibits retaliation against an employee or individual that reports or opposes a discriminatory employment practice. But does this protection apply if the discriminatory employment practice is not itself unlawful? The Kentucky Supreme Court ruled recently in Asbury University v. Deborah Powell that the protection applied, provided the employee has a reasonable, good-faith belief that a discriminatory employment practice has occurred.
The plaintiff, Deborah Powell, was the women's basketball coach at Asbury University. She complained and reported what she viewed as sexually discriminatory practices directed both at her individually and at women's sports at the university more generally. Eventually, the university made up a reason to fire Powell; she responded by filing suit advancing claims of sex discrimination while she was employed and retaliation by her firing for reporting and complaining of the sex discrimination. A jury found for the university on Powell's sex discrimination claim; however, the jury found for Powell on her retaliation claim and awarded her more than $388,000 in lost wages and damages.
To the Kentucky Supreme Court the university argued that Powell's retaliation claim had to fail as a matter of law, since the jury had found no unlawful sex discrimination. The Court, in an opinion authored by Justice Mary Noble, unanimously rejected the university's argument and explained as follows:
... an underlying violation of the KCRA need not necessarily be proved to sustain a retaliation claim under KRS 344.280(1).
Instead, as under the federal rule, all that is required to obtain retaliation protection under KRS 344.280(1) is that the employee have "a reasonable and good faith belief" that the adverse employment practices she opposed were KCRA violations.
And whether that belief is reasonable or in good faith is a question for the jury. Consequently, a jury could believe that the alleged discriminatory conduct of the employer was not in fact discriminatory, but that it could have reasonably appeared so to the employee. That is the upshot of the jury's finding here. A retaliation claim is premised on the notion that the employer takes adverse action against an employee because the employee exercised the right to speak out against discrimination.
Powell is a significant decision and will be the subject of further posts.
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