Retaliation claims in the workplace have gained prominence in recent years at both federal and state court levels. While recent federal rulings have tended to favor employees, Minnesota state court decisions have treated retaliation claims more skeptically.
As the United States Supreme Court returned to work last month to begin its 2011-12 term, on the traditional first Monday of October, employers, employees, and their respective advocates commenced their vigil to see how the jurists address the handful of workplace-related cases on their docket, which are likely to increase as the term progresses.
Employees and their attorneys have not fared very well recently before the high court,1 but as the employees have suffered setbacks, one constant has emerged in workplace-related cases decided by the Roberts Court: retaliation rulings have been favorable to employees.
The prevalence of decisions favoring employees in retaliation cases was reflected in a ruling of the high court this spring,2 consistent with its tendency in recent years. Meanwhile, the 8th Circuit Court of Appeals, which oversees federal court litigation in Minnesota and six surrounding states, weighed in with its own retaliation decision in favor of an employee. These cases contrast with Minnesota state court jurisprudence, which has been less favorable to retaliation claimants lately.
The trend of favorable retaliation rulings for employees during the current era is traceable to a decision of the Supreme Court shortly before Chief Justice Roberts joined it. In Burlington Northern & Santa Fe Ry. Co. v. White,3 the court established an evidentiary basis that is favorable for retaliation claimants in discrimination cases under Title VII of the Federal Civil Rights Act, 42 U.S.C. §2000e-2(a). Reviewing a ruling from the 6th Circuit Court of Appeals, the high court articulated a standard that makes most retaliation cases fact-based and, therefore, less amenable to summary judgment than many other types of workplace-related claims.
The case involved a railroad employee who brought a Title VII action against the railroad for retaliation and sex discrimination. The district court entered judgment on a jury verdict of $43,500 in favor of the employee while denying the employer’s motion for judgment as a matter of law. The Supreme Court affirmed the appellate circuit, which had upheld the lower court. In so doing, the high court held that the antiretaliation provision in Title VII is triggered by any action by an employer that is “materially adverse” to an employee who has engaged in statutorily protected activity. Quoting prior case law, the court defined such action as one that might have “dissuaded a reasonable worker from making or supporting a charge of discrimination,”4 which is not readily susceptible to summary disposition. The high court also affirmed the 6th Circuit’s judgment that the appropriate burden of proof on a claim for punitive damages under Title VII is a preponderance of the evidence, not clear and convincing evidence.5
The Burlington Northern determination ushered in greater leniency for retaliation claimants. That disposition, not surprisingly, has generated a cascade of retaliation claims to the Equal Employment Opportunity Commission (EEOC), the federal agency that oversees Title VII charges. Claims of reprisal have risen to the highest level ever, numbering 36,258 across the country in the past year, 36.3 percent of the total new EEOC charges. This represents an increase from the 33,613, or 36 percent of reprisal claims filed in 2009. Prior to Burlington Northern, there were fewer than 23,000 reprisal claims annually that accounted for less than 30 percent of the EEOC’s caseload at that time. Because of a lag between favorable retaliation rulings for employees and the increase in reprisal charges, the true impact of the court’s most recent retaliation rulings may not be statistically visible for several years.6
The Burlington Northern case also became the first in a string of suits in which the high court recently expanded the rights of retaliation claimants. In 2008, the Supreme Court issued two decisions expanding the mechanisms by which employees may pursue retaliation claims against employers.
In CBOCS West, Inc. v. Humphries,7 553 U.S. 442 (2008), a former restaurant assistant manager claimed he was fired because of his race and because he had complained that a colleague had been dismissed for race-based reasons. Humphries claimed the discharge violated both Title VII and 42 U.S.C. §1981, which grants “[a]ll persons … the same right … to make and enforce contracts … as enjoyed by white citizens.” The high court, affirming the court of appeals, upheld the position that 42 U.S.C. §1981 encompasses retaliation claims, even though not explicitly stated in the statute. Thus, an employee’s claim of retaliation for helping a fellow employee suffering from direct racial discrimination in the workplace may be brought on racial grounds under §1981.
The same day, the high court decided another retaliation case, Gomez-Perez v. Potter,8 in which a 45-year-old postal worker claimed that her employer had violated the Age Discrimination in Employment Act (ADEA) and subjected her to multiple forms of retaliation following her filing of an administrative complaint under the ADEA. The Supreme Court held that the ADEA prohibits retaliation against federal employees who have complained of age discrimination, even though the applicable statute for federal workers, like §1981 in Humphries, did not expressly bar reprisal.
The following year the Supreme Court, in Crawford v. Metropolitan Gov’t of Nashville and Davidson County,9 considered how far protections against retaliation reach and which employees can bring retaliation claims. In Crawford, the claimant was interviewed as part of her employer’s investigation into a discrimination claim brought by another employee. During the investigation the interviewer acknowledged that she had not personally been the target of any discrimination. However, she later brought her own retaliation claim, charging her employer with taking adverse action against her because she disclosed certain information during the investigation in corroborating the other employee’s discrimination complaint.
The issue before the high court was whether a Title VII retaliation claimant must have suffered discrimination before claiming retaliation. Construing Title VII broadly, the court held that the act of reporting improper behavior during an investigation constituted “protected activity” invoking the retaliation provision under Title VII.
This framework of employee-friendly decisions prefigured the Supreme Court’s decisions during the 2010-11 term, another pair of rulings favorable to retaliation claimants. In Kasten v. Saint-Gobain Performance Plastics Corp., a former employee claimed she was wrongfully discharged by the employer after making an oral complaint to management about overtime-pay transgressions under the Federal Fair Labor Standards Act (FLSA), 290 U.S.C. §215(a)(3). The claimant asserted violation of the provisions of the FLSA, which bars reprisal against an employee who has “filed a complaint.” The trial court granted summary judgment for the employer and, the 7th Circuit affirmed.10
The high court intervened on two issues: whether oral complaints are subject to the antiretaliation provision and whether it prohibits retaliation after a “complaint is filed.”
In a 6-2 decision, with Justice Elena Kagan, the newest jurist, recusing herself, the court held that the retaliation claim was actionable. In so doing, it rejected the employer’s claim that the statute required that there be a written charge, rather than an oral complaint. The majority decision, written by Justice Stephen Breyer, reasoned that a narrow interpretation of the phrase “filed any complaint,” as used in the FLSA’s antiretaliation provision, would “take needed flexibility from those charged with the act’s enforcement” and undermine the act’s statutory object to prohibit “‘labor conditions detrimental to the … well-being of workers.’” 11
A dissenting decision, written by Justice Antonin Scalia and joined by Justice Clarence Thomas, would have ruled the other way. Pointing to the “clear” language of the statute, the dissenters would have required a documentary charge in order to activate the retaliation provision. Indeed, they would have gone further and barred such claims for internal investigation, limiting the provision to incidents in which a written charge had been filed with an administrative body such as the EEOC.
The outcome of the Kasten case, following Crawford, could give employees enhanced protection against reprisal for matters arising during investigative process in the workplace as well as charges outside of that forum.
Another retaliation case decided earlier in the term adds to this protection. In Thompson v. North American Stainless, LP,12 an employee sued for retaliation under Title VII after he was fired following the filing of a sex discrimination charge by his fiancée, who worked for the same company. The lower trial and appellate courts dismissed the case on the grounds that third-party retaliation claims are not permitted by Title VII and the claimant had not himself engaged in protected activity.
But the high court unanimously reversed, with Justice Kagan again recusing herself. The majority decision, written by Justice Antonin Scalia, colorfully pointed out that the claimant
is not an accidental victim of the retaliation [–] collateral damage, so to speak, of the employer’s unlawful act. To the contrary, injuring him was the employer’s intended means of harming [his fiancée]. Hurting him was the unlawful act by which the employer punished her.13
A concurring decision by Justice Stephen Breyer, joined by Justice Ruth Ginsburg, noted that the holding is “consistent with interpretations of analogous statutes by other federal agencies,” fortifying antiretaliation provisions under Title VII and, by analogy, other federal and state statutes as well.14
Another retaliation enigma was addressed by the 8th Circuit this year, holding a claim actionable in Young-Losee v. Graphic Packaging International, Inc. 15 The case was brought by a discharged employee who claimed retaliation and sex discrimination after a complaint about harassment she presented to her supervisor was rejected and she was told to leave the premises. When the woman sued under Title VII, the trial court dismissed her case.
But the 8th Circuit reversed and remanded. It reasoned that there was sufficient evidence of a “causal link” between her complaint and discharge, giving merit to a triable claim of retaliation. The employee presented evidence that upon filing her harassment complaint with her supervisor, the supervisor wadded up her complaint, threw it in the garbage can, told her to leave and that he never wanted to see her again. The court concluded that the employee could present “direct evidence that she was terminated in retaliation for filing a formal complaint of harassment.”16
While the federal tribunals generally have been favorable to retaliation claimants, at least recently, state courts have been seeing matters differently. Employees who have brought retaliation claims under the state whistleblower law, Minn. Stat. §181.932, are among those who have been disappointed. The measure, which prohibits retaliating against employees who report actual or suspected wrongdoing to employers, is one of only a handful of Minnesota statutes that bar retaliation.
Last year, in Kidwell v. Sybaratic, Inc.,17 the Minnesota Supreme Court jettisoned an award of nearly $350,000 for discharge of an inhouse attorney. The fractured decision led to different analyses.18 But the upshot of the Kidwell case seems to be that, to qualify for whistleblowing protection when reporting senior management, an employee must have intent to expose wrongdoing outside of the normal “job duties,” and not proceed through “normal” reporting channels.
Proving retaliation under the whistleblower statute is not the only problem that employees have encountered in pursuing retaliation claims in the workplace. Departing from the reasoning of the Thompson decision of the Supreme Court, the Minnesota Court of Appeals has reined in third-party reprisal claims.
In Gagliardi v. Ortho-Midwest, Inc.,19 a former employee brought a sexual harassment and retaliation suit against her former employer under the Minnesota Human Rights Act. She complained that she had been sexually harassed by her boss and harassed by an employee of an affiliated business, including unwelcome emails. Her boyfriend complained directly to the affiliate about the emails, and the employee then was fired, which she ascribed to retaliation for her boyfriend’s complaint.
The district court granted summary judgment to her employer on both sexual harassment and retaliation claims, holding that she failed to prove that her termination was the result of illegal retaliation. The Minnesota Court of Appeals affirmed, holding that a report of alleged misconduct made by a nonemployee third party is not protected under the Minnesota Human Rights Act. The appellate court reasoned that the “plain language” of the state statute barred the retaliation claim because the reprisal must be taken against “the specific ‘person’ engaged in protected conduct.”20 Since the employee “was not ‘that person,’” the statute did not protect her. The court construed the statutory terminology to mean that “an employee must personally engage in protected conduct to establish a prima facie case of retaliation under the MHRA.”21 Thus, third-party retaliation claims, cognizable under the Title 41 of the Federal Civil Rights Act, cannot be maintained under the Minnesota Human Rights Act.
But reprisal claimants in Minnesota got a boost from the Minnesota Court of Appeals in Bahr v. Capella University,22 where it held that a retaliation claim under the MHRA may survive a motion to dismiss by alleging “a good-faith, reasonable belief that the employment practice that [was] opposed was discriminatory,”23 a relatively low pleadings standard. On at least four occasions prior to her termination, the claimant had complained to her employer’s human resources unit and her supervisor that she believed their refusal to implement a performance improvement plan for a struggling employee constituted race-based discrimination and was not equitable.
The appellate court, reversing dismissal of the case by the Hennepin County District Court, held that the claim was actionable because the employee alleged “facts supporting a good-faith, reasonable belief that the conduct opposed constituted a violation of the MHRA.”24 Although the Minnesota Supreme Court later reversed, ruling that the claimant’s belief that her employer’s practices were discriminatory was unreasonable, it did not disturb, indeed, it accepted the “reasonable belief” standard. The pleading standard makes it easier for MHRA reprisal claimants to survive motions to dismiss, at least in the early stages of litigation.
The Bahr decision aligns with the interpretation of the Title VII retaliation provision found in 42 U.S.C. §2000e-3(a). Substantially similar in substance to the MHRA reprisal provision, it does not require proof of actual discrimination.25
The differing outcomes of these retaliation rulings by federal and state courts reflect the dilemma faced by both employees and employers in dealing with reprisal claims in the workplace. The trend is to accord more protection for claimants under federal law than they are given under state statutes. Whether this trend recedes, or becomes even more pronounced, remains to be seen. But, for the time being, retaliation is a force that must really be reckoned with in the workplace.
Marshall H. Tanick is an attorney with the law firm of Mansfield, Tanick & Cohen, P.A., in Minneapolis and St. Paul. He is certified as a Civil Trial Specialist by the Minnesota State Bar Association and represents employers and employees in a variety of workplace-related matters. The author thanks D.J. Warden, a law clerk with the firm, for assistance in preparing this article.
1 See, e.g., AT&T Mobility LLC v. Concepcion, 131 S.Ct. 1740 (2011); Wal-Mart Stores, Inc. v. Dukes, 131 S.Ct. 2541 (2011).
2 Kasten v. Saint-Gobain Performance Plastics Corp., 131 S.Ct. 1325 (2011).
3 Burlington Northern & Santa Fe Ry. Co. v. White, 548 U. S. 53 (2006).
4 Id. at 54, quoting Rochon v. Gonzales, 438 F.3d 1211, 1219.
5 White v. Burlington Northern & Santa Fe R., 364 F.3d 789, 805 (6th Cir., 2004).
6 Charge Statistics, FY 1997 through 2010, U.S. Equal Employment Opportunity Commission, available at: http://www1.eeoc.gov//eeoc/statistics/enforcement/charges.cfm.
7 CBOCS West, Inc. v. Humphries, 553 U.S. 442 (2008).
8 Gomez-Perez v. Potter, 553 U.S. 474 (2008).
9 Crawford v. Metropolitan Gov’t of Nashville and Davidson County, 129 U.S. 688 (2009).
10 Kasten v. Saint-Gobain Performance Plastics Corp., 570 F.3d 834, 840 (7th Cir. 2009).
11 Kasten v. Saint-Gobain Performance Plastics Corp., 131 S.Ct. 1325, 1328 (2011) (citing 29 U.S.C. §202(a).
12 Thompson v. North American
Stainless, LP, 131 S.Ct. 863 (2011).
13 Id. at 870.
14 Id. at 871.
15 Young-Losee v. Graphic Packaging International, Inc., 631 F.3d 909 (8th Cir. 2011).
16 Id. at 912.
17 Kidwell v. Sybaratic, Inc., 784 N.W.2d 220 (Minn. 2010).
18 See M. Tanick “Whither Whistleblowing? Uncertainty Stalks the Way Ahead,” Bench & Bar 67:11 (December, 2010).
19 Gagliardi v. Ortho-Midwest, Inc., 733 N.W.2d 171 (Minn. App. 2007).
20 Id. at 182 (citing Minn. Stat. §363A.15).
21 Id. at 183 (emphasis added).
22 Bahr v. Capella University, 765 N.W.2d 428, 436 (Minn. App. 2009), rev’d 788 N.W.2d 76 (Minn. 2010).
23 Bahr v. Capella University, 765 N.W.2d at 433.
24 Id. at 436.
25 E.g. Fine v. Ryan Int’l Airlines, 305 F.3d 746, 752 (7th Cir. 2002).