Jena McClellan had established herself pretty well as a telemarketer at Midwest Machining until she had to report that she was pregnant. Her supervisor commenced a litany of negative comments and, about three months later, she was fired. When McClellan was fired she was made to meet with the company president, Philip Allor, who, McClellan claimed, pressured her into signing an agreement releasing all her claim in exchange for $4,000. McClellan did sign the agreement.
McClellan was paid the severance money and later filed a pregnancy and sex discrimination lawsuit. About three weeks after the suit was filed and before any answer was due, McClellan paid back the $4000 she'd been paid to release her claims. The district court allowed limited discovery as to whether McClellan had entered the severance agreement knowingly and voluntarily. The corporation moved for summary judgment; although the district court observed that there were disputed issues of fact regarding whether McClellan had entered the agreement knowingly and voluntarily, it gave the corporation a summary judgment because McClellan didn't pay the $4000 back before she filed suit.
The "tender-back doctrine" is from contract law and holds that "contracts tainted by mistake, duress, or even fraud are voidable at the option of the innocent party" but "before the innocent party can elect avoidance, she must first tender back any benefits received under the contract." But if the innocent party fails to do so within a reasonable time of learning that she can rescind the contract, she ratifies the contract and makes in binding.
The Sixth Circuit reversed, explaining that "requiring recently-discharged employees to return their severance before they can bring claims under Title VII ... would serve only to protect malfeasant employers at the expense of employees' statutory protections at the very time that those employees are most economically vulnerable" and held that "the tender-back doctrine does not apply to claims" brought under Title VII.
Pittington prevailed at trial against his former employer on claims that he was retaliated against for his involvement with his wife's sexual harassment complaint in violation of both Title VII and Tennessee law. The jury wasn't too generous though; it did not award Pittington any compensatory or punitive damages and only $10,000 in back pay, which was only about 25% of what Pittington requested. After the district court refused his motion to order a new trial on damages, Pittington appealed. The Sixth Circuit reversed and ordered the district court to revisit or retry the damages issue.
Pittington's proof at trial regarding backpay was not too specific. The defense attorney suggested to Pittington at trial that he had received a pay raise in defendant's employ to $10.50 per hour, although Pittington himself was not too sure about that. In any event, Pittington's lawyer argued to the jury using an hourly rate of $10.50 multiplied by 40 hours per week (the defense attorney, in addition to suggesting to Pittington that he got a pay raise, also solicited testimony that Pittington sometimes worked more than 40 hours per week) while deducting lesser wages that Pittington earned at other jobs between the time of his firing and trial for a total of $40,632.50. This was enough, the Sixth Circuit ruled, to establish Pigginton's backpay damages with sufficient reasonable certainty, which is all that is required.
The mistake made by the district court, the Court explained, was to assert that it was Pigginton's burden to show that he had acted diligently to mitigate his damages sustained by reason of the former employer's wrongdoing. The Court explained: "Such critiques were unfounded, as Pittington, did not bear the burden of producing evidence as to his efforts at mitigation." So the district court, Hon. Pamela Lynn Reeves of the Eastern District of Tennessee, blew the issue, going at it from exactly the wrong direction.
The defendant-employer failed, the Court explained further, to offer, as was its burden, "evidence indicating that substantially equivalent positions ... were available and that [Pigginton] failed to use reasonable care and diligence in seeking such positions." So it was the employer's burden to show Pigginton had unreasonably failed to mitigate the damage done by its wrongdoing, and merely suggesting criticisms by way of cross-examination was not enough.
Notwithstanding the Sixth Circuit's ruling, plaintiffs would be well-advised to present themselves evidence of how they labored to mitigate the harm done by the defendant's wrongdoing. Doing so, as a general matter, presents them as a hard-worker and serves to buttress a claim for compensatory damages for emotional distress and mental anguish. Pigginton's proof as to backpay was barely sufficient and only because the defendant's was nonexistent did Pigginton prevail in the Sixth Circuit. Notably, the jury awarded him no emotional distress damages.
The Sixth Circuit's decision earlier this year in Jackson v. VHS Detroit Receiving Hospital offers an excellent example of the correct analysis of comparator proof in discriminatory discipline cases. Judge Eric Clay's opinion shows the type of care and attention to detail all too rare.
The plaintiff, Karon Jackson, worked as a mental health technician at the hospital. Her duties included handling the discharge of psychiatric patients. She was a 15 year employee when she was fired in 2013; she had received consistently good performance evaluations. One of the duties in discharging the psychiatric patients was checking their ID bands to make sure the right patient was being discharged. Jackson and an RN both failed to check the ID band of a patient that was mistakenly discharged. The patient, however, later returned to the hospital without incident or injury. Nevertheless, Jackson was terminated.
Jackson filed a sex discrimination suit following her discharge. She pointed to differential discipline imposed on two male colleagues, a Duncan and a Little, as her principal proof of gender discrimination. The district court, Judge Stephen Murphy, ruled that Jackson's conduct was too dissimilar from Duncan's and/or Little's to be fairly comparable and granted the hospital a summary judgment.
The Sixth Circuit reversed. It explained that Jackson's conduct should be compared with Duncan's and Little's both as to whether she presented a prima facie case of discrimination and as to the issue of pretext.
With regard to the prima facie case analysis the Sixth Circuit advised that "we look to whether the comparators' actions were of comparable seriousness to the conduct for which Plaintiff was discharged. A plaintiff is not required to show that this proposed comparator's actions were identical to his own." One of the comparators, Duncan, had likewise failed to check a patient's ID when discharging the patient and, as a result, the incorrect patient had been discharged. At the time of this incident, Duncan was subject to a "last-chance agreement" because of, among other things, a failed drug test. Little also had a prior disciplinary history; he failed to check a patient for weapons upon the patient's admission and was cited for the same infractions as was Jackson.
The district court had asserted that Jackson could not cited Little as a comparator, because he had never discharged the wrong patient. This was error, the Sixth Circuit pointed out: Jackson did not need to show that the comparator's conduct was identical, only that it was of comparable seriousness. The hospital's reference to the same sections of its handbook as violated by Jackson and Little showed this.
The Sixth Circuit again returned to comparing Jackson's with Duncan's and Little's conduct when examining the issue of pretext. This entailed "a change in the rigor with which we evaluate Jackson's similarity to her comparators; it is not an increase in the weight of her evidentiary burden." The court described its analytical focus as follows:
When conducting this more rigorous comparison, we again focus on the severity of the differently treated employees' actions. The relative severity of two actions is not determined solely by whether those actions violated the same company rule or policy. Instead, employers -- and therefore courts -- are free to consider both the actual and potential consequences of the employee's actions.
Considering actual consequences makes some sense, but getting into the area of potential consequences - an area necessarily prone to speculation -- is problematic; perhaps also, some would say, a convenient way for a judiciary hostile to employment discrimination cases to justify their dismissal. Here, the court punts a bit: it first asserts that "whether differences in ... hypothetical injuries justified differential discipline is a task better suited for a jury." Second, the court asserted that the potential consequences from Duncan's conduct were much more apparent when the mistake occurred, a fact that the court said favored Jackson.
As to Little, both his and Jackson's infractions "were cited as violating the same two major infractions [which] indicates that those mistakes were substantially identical in terms of potential disciplinary consequences." They were also "identical in the severity of their actual consequences: neither employees' violation resulted in harm to patients or staff." The potential consequences were also sufficiently similar, since some grave potential risk surrounds both discharging erroneously a psychiatric patient and allowing one to bring three weapons into the hospital.
A final factor the Sixth Circuit cited in Jackson's favor was the gender disparity among the mental health techs. Jackson was the only female out of 14, although their overall work unit was predominantly female: "the fact that Jackson was the only female out of fourteen MHTs supports her contention that [the hospital] preferred males for that particular position."
What do we gain out of this: (1) Jackson had a better work record than either Duncan or Little; they had some fairly significant disciplinary history while she had good performance reviews; (2) they were all cited for infractions that regarded the same policy interests of the hospital; (3) the actual consequences of the violations were the same: there was no harm to either patient or staff; and, (4) the potential consequences - harm to either patient or staff -- were the same also. This plus the gender disparity among Jackson and her colleagues was enough to create a fact issue for trial to be resolved by a jury. One can see that it would be reasonable to conclude that a different and tougher standard was being applied to Jackson, a female, as opposed to her male colleagues.
In support of her claim, the plaintiff had cited testimony from two coworkers, Clancy and George, regarding the consistent and persistent favoritism that their supervisor showed toward male employees. The testimony was particularly important, because the Sixth Circuit when assessing the pretext element of a failure-to-promote claim; where the plaintiff's qualifications or at least equal or slightly better, he or she is required to present evidence of a discriminatory atmosphere in the workplace; conversely, a plaintiff presenting evidence of clearly superior qualifications negates the need to present other evidence of discrimination.
The Sixth Circuit observed as follows regarding Denoma's evidence of a discriminatory atmosphere in the workplace:
As discussed earlier, Clancy and George testified that they believed Appellant's opportunity for advancement was limited by her gender or by her exclusion from a gendered in-group. We have held that non-decision-makers may provide circumstantial evidence of discrimination by opining the employees membership of a protected class way role in employment decision. See Hopson v Daimler Chrysler Corp, 306 F3d 427, 437 (6th Cir 2002) (holding that a manager provide circumstantial evidence of discrimination by testifying at his deposition that he believed the plaintiff's race was a factor in the company's decision not to promote him, even though the manager was not involved in the decision); Carter v University of Toledo, 349 F3d 269, 271-72, 274-76 (6th Cir 2003) (holding that a black plaintiff had created a genuine issue of fact on the pretext issue by testifying that a university vice Provost, when asked by the plaintiff whether her contract would be renewed, so this appeared to not want to employ black professors). Here, neither Clancy nor George specifically opined that appellant's application for the [ ] position was rejected due to her gender. Their opinions' lack of specificity detracts from their probative value regarding the reasons for Appellant's non-promotion, but does not render them immaterial.
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."
Title VII prohibits retaliation against an individual or employee that reports, protest or opposes a discriminatory practice (or at least what is reasonably and in good faith believed to be a discriminatory practice) directed at herself or others. But in the real world individually is rarely craft their statements knowingly within legal confines, so one issue can arise in retaliation cases regarding whether or not discrimination was truly protested or if the statement(s) were simply more of a general nature.
The Sixth Circuit had cause recently to consider in Yazdian v. ConMed Endoscopic Technologies Inc. whether the plaintiff's statements amounted to protected activity. In the course of reversing a summary judgment granted by the district court, the court cited the following as "individually and together qualify[ing] As Title-VII protected activity":
More generally, the court explained that "an employee who complains that an employer is creating a 'hostile work environment' engages in Title-VII-protected activity when the context objectively reveals that the employee is using the expression to complain about repeated abusive discriminatory comments or treatment."
The Sixth Circuit's opinion was authored by Circuit Judge Karen Nelson Moore, and joined by Chief Judge Guy Cole and Circuit Judge Eric L. Clay.
We have addressed other questions about retaliation on the website:
Plaintiff Shana Perry was sexually harassed by her supervisor Mark DeHaan. She reported the harassment, AutoZone began an internal investigation, and, during the investigation, plaintiffs Damon Harper and Daryl Quinney made statements corroborating Perry's allegations. All three were subsequently fired.
The jury awarded Perry $150,000 in damages for emotional distress and $400,000 in punitive damages against AutoZone; Harper was awarded $60,000 for lost wages and $100,000 in emotional distress damages; Quinney was awarded $100,000 in emotional distress damages and $23,300 for lost wages. See Verdict Form. The district judge, the late John G. Heyburn, reduced the punitive damages award to comply with Title VII's statutory cap of $300,000.
The Sixth Circuit's opinion was per curiam and issued on behalf of Circuit Judges Martha Daughtrey, Deborah Cook and Eric Clay. Perhaps the only surprise is that the case was argued on November 18, 2014; some would infer a more extensive analysis would come after such a delay.
The plaintiffs were represented by Rheanne Falkner and Charles Miller of the Louisville firm of Miller & Falkner; they were lauded by Judge Heyburn for their "considerable skill and determination."
After awhile, enough is enough and even the most tolerant and forgiving person can take no more. But does a plaintiff forfeit her right to sue for any act of discrimination within the limitation period, if she let the first one pass and it was beyond the limitation period? This issue came before the Seventh Circuit recently in Stuart v. Local 227, 14-1710 (November 14, 2014).
The plaintiff, Stuart, is a professional driver, and she wanted union referrals for driving jobs related to movie and TV productions, because those driving jobs paid the most. The local never in its 70 year history had referred a female driver for any of the TV or movie jobs. At the end of 2009, the local adopted a rule that anyone who wanted one of the movie/TV jobs had to complete and submit an application for referral, which Stuart did in March 2010. Months later, after receiving no referrals, Stuart called the local's business agent "a number of times"; the business agent, in essence, said "don't call me, I'll call you." In the four and a half years since, Stuart has received no referrals, although there has been no lack of work.
Stuart filed an EEOC charge of sex discrimination in October 2011, and received her right to sue letter in September 2013. She filed suit timely within the 90 day period in December 2013. The local, in its answer, pleaded the affirmative defense that the administrative statute of limitations had expired, because Stuart did not allege in her complaint any discriminatory actions within the 300 day period proceeding filing of her EEOC charge.
The district court, Judge Milton Shadur, without motion from the local ordered Stuart to respond to the statute of limitations defense. Stuart explained in response that the local had not referred her any of the numerous movie and TV project jobs in the 300-day period. The district court ruled that Stuart's suit was untimely, and that she had known since 2005 that the local discriminated based on gender, noting that her complaint had alleged that she had not been referred any jobs going all the way back to 2005. The Seventh Circuit, in a rather stinging opinion authored by Judge Richard Posner, reversed, making two essential points:
"A plaintiff is not required to negate an affirmative defense in his or her complaint."
"There is no rule that a plaintiff who has been repeatedly discriminated against by her employer cannot challenge any of the discriminatory acts under Title VII unless she files her EEOC charge within 300 days after the first such act. ... That would be an absurd rule. It would require employee to infuriate her employer or union by complaining about what might be an inconsequential act of discrimination that she did not expect to be repeated."
So the case was remanded for further proceedings, although before a different district judge based on the "abruptness and irregularity of the district judge’s handling of this case (we can’t understand his deciding to dismiss the complaint with prejudice, thereby preventing the plaintiff from amending the complaint, or his instructing his law clerk to request the plaintiff’s EEOC charge from the plaintiff’s lawyer, without telling the defendant, even though the charge was not part of the record), and the unmistakable (and to us incomprehensible) tone of derision that pervades his opinion, we have decided that further proceedings in the district court should be before a different district judge."
Judge Posner also took pains to explain the idiom, "hoist by her own petard":
“Hoist with his own petard,” famously spoken in Hamlet, means “lifted” by the explosion of one’s own little bomb—a “petard” is a small bomb.
Title VII retaliation claims require proof that the desire to retaliate was the but-for cause of the challenged employment action.
This ruling, while producing consternation in some quarters and while it will result it some meritorious claims being thrown out before trial by pro-corporation judges skeptical of if not hostile to any claim having to do with employment discrimination, essentially aligns caselaw under Title VII with the proof standard applicable to both discrimination and retaliation claims under Kentucky law. Juries can figure out when somebody's done wrong, although they might likely take pause at contemplating the byzantine instructions they will receive in federal cases presenting both discrimination and retaliation claims and offering different proof standards.
Of greater concern is the Court majority's overt hostility toward employment discrimination and retaliation claims and its unabashed expression of sympathy for corporate and business interests. After wading through statutory text and the usual legal analysis steps, the Court expresses alarm about the growing number of retaliation claims and states its purpose and intent:
In addition lessening the causation standard could also contribute to the filing of frivolous claims, which would siphon resources from efforts by employer, administrative agencies, and courts to combat workplace harassment. Consider in this regard the case of an employee who knows that he or she is about to be fired for poor performance, given a lower pay grade, or even just transferred to a different assignment or location. To forestall that lawful action, he or she might be tempted to make an unfounded charge of racial, sexual, or religious discrimination; then, when the unrelated employment action comes, the employee could allege that it is retaliation. If [the employee] were to prevail in his argument here, that claim could be established by a lessened causation standard, all in order to prevent the undesired change in employment circumstances. Even if the employer could escape judgment after trial, the lessened causation standard would make it far more difficult to dismiss dubious claims at the summary judgment stage. It would be inconsistent with the structure and operation of Title VII to so raise the cost, both financial and reputational, on an employer whose actions were not in fact the result of any discriminatory or retaliatory intent. Yet there would be a significant risk of that consequence if respondent's position were adopted here.
The Court does not explain the basis for its conclusion regarding a "significant risk of that consequence" but the Court majority clearly wishes to do what it can to limit the scope of Title VII, encourage the dismissal of claims by the lower courts and generally protect corporate and business interests. As Justice Ginsburg points out in her dissenting opinion, "the Court has seized on a provision adopted by Congress as part of an endeavor to strengthen Title VII, and turned it into a measure reducing the forece of the ban on retaliation.
it is not a prerequisite in discrimination cases that a comparator have the same supervisor as the plaintiff.
In addition to reversing the summary judgment granted Ford by the district court, the Sixth Circuit also vacated a discovery order where the district judge had restricted "discovery based on this erroneous same-supervisor requirement" which the Sixth Circuit had previously ruled in Bobo v. UPS, 665 F3d 741 (6th Cir 2012), amounts to "an improper denial of discovery."
