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The 11th Circuit Reverses The Retaliation Claim

Title VII’s anti-retaliation provision (42 U.S.C. 2000e-3(a))makes it unlawful for an employer to discriminate against an employee:

because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter

To prove a case of retaliation under Title VII,  the plaintiff must show:

1. that she engaged in statutorily protected conduct
2. that she suffered an adverse employment action
3. there is some causal connection between the two events

There was no dispute that Alvarez engaged in statutorily protected conduct when she raised issues of discrimination in her complaint letter. The company argued, however, that there was no adverse action because there were plans underway to fire Alvarez even if she had not complained about discrimination in her letter.

The Court rejected this argument The evidence showed that the letter caused Alvarez to be fired the day after she mailed it – sooner than she would otherwise have been fired – and that the Verdezotos decided not to wait until they found a replacement as they had planned. This was sufficient, according to the Court, to establish the “adverse action” part of her retaliation claim.

One of the other reasons given by the defendant for firing Alvarez -- that it would be "awkward" and "counterproductive" to keep her around -- was also rejected by the Court. It stated:

Anyone who complains about unlawful discrimination is not likely to be a happy camper. ….And it will always be “awkward” and perhaps “counterproductive” in the business sense, to work with people who complain that you have discriminated against them.

But recognizing these concerns as legitimate, non-retaliatory reasons to fire someone who complains about unlawful discrimination would do away with retaliation claims and the protection they provide to victims of discrimination.

The final reason give by the company for firing Alvarez after it received her letter of complaint -- that it had to get rid of her because the Verdezotos were afraid that she might vindictively use her position as controller to sabotage the company’s operations --was also rejected by the Court after careful consideration.

The reason was because there was simply no evidence that the proffered reason was a valid one. As the Court pointed out:

Her letter contains no threats against the company or anyone else, nor does it provide a reasonable basis for inferring that Alvarez would try to disrupt operations. … And, of course, there is no evidence that Alvarez’s continued employment posed a physical danger to the Verdezotos or their other employees. The company was not entitled to summary judgment on this ground.

With that, the Court concluded that Alvarez would be entitled to prevail unless Royal Atlantic could convince a jury that:

• if they didn’t fire Alvarez immediately she would sabotage their operations or harm others and

• there was no less drastic means of reliably preventing that other than firing her

The Court also stated that Alvarez would be entitled to damages for the length of time she would have remained on the job if she had not sent the letter complaining of discrimination. The Verdozotos both testified that their initial plan was to keep Alvarez on board until they had lined up her replacement. At the time of oral argument of the appeal, the controller position remained vacant for three years after Alvarez was fired.

What all of this means is that it looks like Alvarez has a reasonable shot of winning three years of damages representing her economic loss (minus whatever she earned in the interim) when the case goes back to trial (as well as attorney fees if she prevails.)

Take Away

This is a fascinating and important case. It’s not the first time I have heard of a company defending itself by claiming that it had to fire an employee after he or she raised a discrimination claim because the employee could no longer be trusted. It comes up particularly with employees involved with high levels of responsibility and access to confidential information – like in house lawyers and financial executives -- and it’s a defense that is appealing to many judges. That’s why this thoughtful decision from the Eleventh Circuit will be very helpful to victims of retaliation in the future.

It makes sense that a person should not have to worry about losing her job if she exercises her lawful right to raise a concern about discrimination -- even if the complaint makes the employer uncomfortable. Now there's a recent opinion from a high court which confirms this important principle.

images:  thebsreport.files.wordpress.com

The Eleventh Circuit Reverses

Mixed Motive Analysis Wrongfully Applied

Part of the reason why the Eleventh Circuit reversed the decision was because it found that the district court wrongfully applied a Title VII mixed motive analysis to an ADEA case.

The discussion involves a lot of complicated and tortured law, but here’s the simplest I can make it.

In the landmark Supreme Court case of  Price Waterhouse v. Hopkins  decided in 1989, the evidence showed that the partners at Price Waterhouse made sexist remarks and engaged in gender stereotyping when they denied Ann Hopkins partnership in the firm. In other words, there was direct evidence of discrimination.

In its holding the Supreme Court set out a new standard which could be applied to cases with direct evidence of discrimination.  In sum, when a plaintiff shows that race or sex discrimination was a motivating or substantial factor in an employment decision, the burden of persuasion shifts to the employer to prove that it would have made the same decision anyway (in the absence of the discriminatory motive.)

Since the Price Waterhouse decision, this kind of discrimination case is often referred to as a “mixed motive case” with a “same decision defense.”

In Moro’s case, the district court applied the Price Waterhouse mixed motive analysis and ruled that the Hospital proved its “same decision” defense. It  concluded that Mora ‘s termination was inevitable given the number and severity of her workplace problems and that no reasonable jury could find otherwise.  And so she lost as a matter of law.

The problem with the district court’s ruling -- according to the 11th Circuit -- is that the Supreme Court's decision in  Gross v. FBIS Financial Services (2009) held that the Price Waterhouse mixed motive burden shifting analysis only applied to discrimination claims brought under Title VII and did not apply to the Age Discrimination in Employment Act. ( I wrote about the awful Gross case here and here)

Consequently, since the mixed motive burden shifting analysis was wrongly applied,  the defense was not entitled to its same decision defense, and the district court’s reliance on that defense in finding against the plaintiff  was reversible error.

The Jury Should Decide Whether Mora Was Fired Because Of Her Age

After the 11th Circuit explained why the district court’s analysis was wrong, it went on to explain what the correct analysis is – and unlike the above discussion, it’s all very straightforward from there.

A plaintiff in an ADEA case may prove illegal age discrimination with either direct or circumstantial evidence. Moro testified that she was fired because of her age, and two co-employees substantiated her. The Hospital denied that the comments were made which meant that material facts were in dispute and the case properly belonged in front of a jury.

As the Court put it:

The resolution of this case depends on whose account of the pertinent conversations a jury would credit. …..

A reasonable juror could find that Rodriguez’s statements should be taken at face value and that he fired Plaintiff because of her age. For us to conclude otherwise would be to deny Plaintiff the benefit of resolving all reasonable inferences in her favor as the nonmoving party.

Given the disputed question of material fact, Defendant was unentitled to a summary judgment.

Take Away

It’s awfully common for people to be let go because they are considered by some to be too old and too expensive. I can’t count the number of times I have represented people who were fired for just those reasons.

In this case,  Josephine Mora was told, “you’re too old. I need to find someone younger and cheaper.” If it’s not a case of age discrimination, I don’t know what is.

It’s both astounding and disheartening that forty three years after the passage of the Age Discrimination in Employment Act, a court faced with such strong evidence of age discrimination could throw the plaintiff out, grant judgment in favor of the employer, and deprive the employee of her right to a jury trial

It’s a good thing the Eleventh Circuit fixed the mistake and published this opinion, because if this woman can't get her age discrimination case in front of a jury, I have a hard time figuring out who can.

image: lawblog.legalmatch.com

It stated:

The terms 'whore' 'bitch', and 'cunt,'  the vulgar discussions of women's breasts, nipples, and buttocks, and the pornographic image of a woman in the office were each targeted at Reeves's gender.

Like 'bitch,' 'whore,' is traditionally used to refer only to women. The dictionary defines 'whore' in terms of gender as a 'woman who practices unlawful sexual commerce'...

A raft of case law ... establishes that the use of sexually degrading, gender-specific epithets, such as 'slut,' 'cunt,' 'whore' and 'bitch,' .... have been consistently held to constitute harassment based upon sex ...

It didn't matter, to the Court, that Reeves co-workers never directly called her a "bitch," a "fucking whore," or a "cunt." Reeves claimed it happened every day, and that the manager accepted and tolerated the behavior in spite of her repeated complaints. As the Court pointed out:

If C.H. Robinson tolerated this environment, it may be found to have adopted the offending conduct and its results, just as if the employer affirmatively authorized it.

The Court also rejected C.H. Robinson's argument that the gender-specific insults were not directed at Reeves, and therefore not "because of her sex," since the conduct started well before Reeves started working there. 

That argument, according to the Court, is inconsistent with the central premise of Title VII -- that is:  workers are to be protected from discrimination on account of gender in the workplace. In the words of the Court:

Here, Reeves claims that her conditions of employment were humiliating and degrading in a way that the conditions of her male co-workers' employment were not.

It is no answer to say that the workplace may have been vulgar and sexually degrading before Reeve arrived.

Once Ingrid Reeves entered her workplace, the discriminatory conduct became actionable under the law.  Congress has determined that Reeves had a right not to suffer conditions in the workplace that were disparately humiliating, abusive, or degrading.

Finally, the Court rejected C.H. Robinson's third contention -- that Reeve's co-workers used the terms "bitch" and "whore" to refer to both men and women and so those terms couldn"t be gender specific. The Court noted:

It is undeniable that the terms "bitch" and "whore" have gender specific meanings. Calling a man a "bitch" belittles him precisely because it belittles women. It implies that the male object of ridicule is a lesser man and feminine , and may not belong in the workplace. Indeed, it insults the man by comparing him to a woman, and , thereby could be taken as humiliating to women as a group as well.

In sum:

If Reeve's account is to be believed, C.H. Robinson's workplace was more than a rough environment -- indiscriminately vulgar, profane, and sexual. Instead, a jury reasonably could find that it was a workplace that exposed Reeves to disadvantageous terms or conditions of employment to which members of the other sex ere not exposed.

Title VII was plainly designed to protect members of a protected group from adverse conditions of employment like those Reeves alleges were endemic to C.H. Robinson.

And so, Ingrid Reeves gets her day in court.

Conclusion

There are so many women who are regularly subjected to degrading and offensive work environments particularly where most of the employees are men. It's sad but true that although C.H. Robinson seems to be a blatant repeat offender, what happened to Ingrid Reeves and Julie Gallagher are not isolated events. I have been hearing these stories, and they haven't seemed to change that much, for the past thirty years. This stuff happens, unfortunately, all of the time.

That's why this case is so important. It states why it's illegal to subject women to this type of insult and profanity in the workplace. It's a particularly thoughtful, insightful  and well written opinion  which will be helpful to employers as to what's illegal and what's not -- and why -- and to women and their lawyers who bring hostile environment sex discrimination claims in the future.

It's a great opinion from the Eleventh Circuit.

images: abovethelaw.com

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