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Title VII Developments on Retaliation, Harassment and Timeliness
Retaliation: What Must a Plaintiff Prove?
In 2006, the Supreme Court established the criteria to be applied in determining whether a claim of employment retaliation can be sustained. Specifically, it held that “retaliation is unlawful when the retaliatory acts were harmful to the point that they could well dissuade a reasonable worker from making or supporting a charge of discrimination.” Burlington N. & Sante Fe Ry. Co. v. White, 548 U.S. 53, 57 (2006). The Supreme Court’s criteria were applied in a recent case decided by the Second Circuit Court of Appeals in New York, Hicks, et al. v. Baines, 593 F.3d 159 (2d Cir. 2010). This case, like the cases discussed below, appears to turn on somewhat technical issues, but these issues play an important role in the resolution of the parties’ substantive rights.
In the Hicks case, the plaintiff, White, claimed that his supervisor, Baines, retaliated against him because White had participated in an internal company investigation which resulted in disciplinary action against Baines. The Second Circuit’s decision is informative for two reasons—it explains what the plaintiff must prove in a retaliation case and also what kind of evidence the plaintiff must adduce to defeat a motion for summary judgment.
As to what a plaintiff must prove, the Court notes that the plaintiff need not show that the retaliator’s motive was solely or even predominantly the cause of the adverse action which plaintiff suffered; it is enough to establish that retaliation “played a part” in the retaliator’s actions. The Court noted that the protection against retaliation is actually broader than the protection against discrimination because, in a discrimination case, the plaintiff must show that the employer’s actions affected the plaintiff’s terms and conditions of employment, not just that they were sufficient to dissuade a reasonable worker from supporting a charge of discrimination (by, in this case, participating in an employment investigation). Nonetheless, even in a retaliation case, the plaintiff must show that he suffered a “material adversity”; in other words, “petty slights or minor annoyances” do not constitute actionable retaliation.
What this case also makes clear is that in opposing a defendant’s motion for summary judgment (which is a motion made to dismiss a case before trial), the plaintiff cannot prevail simply by repeating the claims of his complaint or with summary and unsubstantiated recitations. For example, White claimed that Baines retaliated against him by compromising the security of White’s workplace, which could only have been done by “someone” who had the security codes and keys to the facility, which Baines did. The Court found that this claim was insufficient to create a triable issue because White offered no evidence to show that Baines was the only person who had the keys and codes and, therefore, White’s claim against Baines was “speculation.” Similarly, White claimed that Baines referred to him as “Hick.” But the Court found this claim also to be insufficient because White offered no evidence to show that Baines’ use of the word “Hick” was “retaliatory,” in other words, that Baines began using that word in response to White’s participation in the employment investigation.
This case is instructive in two different ways. It shows that the legal standard of a plaintiff’s proof in a retaliation case is lower than in a typical discrimination case but it reaffirms that to get his case to trial, the plaintiff must produce evidence supporting his claim, not just conclusory or unsubstantiated allegations.
Female/Male Harassment, Retaliation and Statute of Limitations
Another recent court of appeals decision addresses the issues of female harassment of a male, statute of limitations, and retaliation. Turner v. The Saloon, Ltd., 595 F.3d 379 (7th Cir. 2010). In this case, the plaintiff, Turner, a male, claimed that his manager, Lake, a female, sexually harassed him through a series of sexually inappropriate statements and actions and also that he was subsequently fired (retaliation) for complaining about Lake’s harassment. The lower court dismissed the harassment charge finding that virtually all of the alleged acts of harassment occurred outside of the statute of limitations period. It also dismissed the retaliation claim.
The court of appeals reversed on both counts. As to the harassment claim, the court noted that the statute of limitations applies differently depending on whether the plaintiff is asserting a claim for discrete acts of discrimination or a hostile work environment claim. In the former situation, the statute of limitations prevents recovery for discrete acts that occur outside the statutory time period. In contrast, a hostile environment claim requires analysis of a chain of events, so that this kind of action will be timely if any of the material events occurred within the statutory time period. The court found that the lower court had misconstrued the nature of Turner’s claim by treating it as a series of inappropriate acts rather than as a hostile environment claim. Because one of the alleged hostile acts occurred inside the limitations period, Turner’s hostile environment claim was held to be timely.
The court noted that this was the atypical case of a male allegedly being harassed by a female. (Actually, EEOC statistics indicate that these kind of claims are being asserted much more frequently than in the past.) Referring to a different Circuit’s opinion, the Seventh Circuit Court of Appeals held that the standards for discrimination are the same regardless of which sex is doing the harassing. Like the Fifth Circuit, this Court found “it helpful to ‘hypothetically transpose the sexes of the parties in this case’”, and concluded that if “Lake were male and Turner female, and the allegations were similar, there would be no doubt that the case would survive summary judgment.”
Turner did not fare as well with his retaliation claim which essentially alleged that he was fired because he had complained about Lake’s harassment a year and a half before the termination. The Court found that the 18-month period between Turner’s complaint against Lake and his subsequent discharge was “far too long” to withstand summary judgment. It noted that Lake gave Turner a positive review after Turner made his complaint and that he had received at least ten reprimands from management before he was fired, including a one-week suspension for exposing himself in the basement of the restaurant. Based on these facts, the Court concluded that no reasonable jury could have found that Turner’s discharge was caused by his earlier complaint about Lake.
