In a recent decision, the Fifth Circuit addressed the difficult question regarding what level of reprisal is enough to constitute retaliation? In Cabral v. Brennan, 853 F.3d 763 (5th Cir. 2017), Javier Cabral worked for the U.S. Postal Service. He complained about discrimination several times. He was then placed on a two day suspension after he allegedly struck a supervisor with a postal vehicle. The employee accused the supervisor of badgering him with questions The supervisor asked him for his driver’s license and Mr. Cabral refused to provide it. Mr. Cabral was placed on suspension for two days.

The employee claimed the two day suspension without pay was in retaliation for his previous complaints of discrimination. The U.S. Postal Service, however, claimed the employee was placed on suspension because he was using a suspended driver’s license. He may have had an occupational driver’s license. But, if so, he failed to produce it when asked. USPS moved for summary judgment. It relied on the decision in Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53 (2006) which held that acts other than straight suspension, demotion and termination could constitute retaliation. If the employer’s action was materially adverse, then the action could constitute retaliation under Title VII. The employer claimed the two day suspension was not materially adverse. The lower court agreed with the Postal Service and granted summary judgment.

Indeed, the defendant argued that the plaintiff had several DWI convictions on his record. The plaintiff was required to tell his supervisors about any driver’s license suspensions, but he had failed to do so. The plaintiff argued the suspension was retaliation for his prior activity opposing discrimination.

The Fifth Circuit agreed with the lower court. The higher court noted that the plaintiff in Burlington Northern was placed on unpaid leave for 37 days, causing her to fall into a deep depression. The plaintiff here, said the Fifth Circuit, had not shown that the suspension exacted a physical, emotional, or economic toll on him. Therefore, the employer’s action was not materially adverse. See the decision here.

One has to wonder about the facts of this case. Anytime an employee is accused of striking a supervisor, that is a case that is looking to be dismissed. The employee deemed the allegation. But, that sort of allegation forces the plaintiff to start out at a deficit. Perceptions do matter. The record from the lower court indicates Mr. Cabral was eventually paid for those two days of suspension.

Too, that the employer has filed several prior EEO complaints undermines his credibility. Within six months, he filed one EEO complaint and three grievances which alleged harassment and retaliation. Before that six month period, he had already filed two other EEO complaints. Some federal employees, fearing they will suffer some technical issue, think they must file a complaint for each and  every act of harassment. But, in reality, such employees appear to be “frequent filers.” Some lawsuits simply should not be filed.

Mary Ellen Johnson worked at Southwest Research Institute for many years before she was fired. Some time before her termination, she complained about possible discrimination against her due to her gender. She filed an internal complaint with SWRI in June, 2012. She then filed a complaint with the EEOC on Aug. 3, 2012. Several days later, she was fired on Aug. 15, 2012. She was told the reason was failure to observe timekeeping requirements. She had a security clearance in her former position. She lost the clearance when she was fired. The timing of the termination alone suggests the employer was motivated by reprisal because she went to the EEOC.

The employer moved to dismiss the retaliation claim. It claimed she was fired because she lost her security clearance and only because she lost her clearance. If any employer is not motivated by retaliatory intent, but by something neutral, then she could not claim reprisal. When reviewing a motion to dismiss, a judge must look at what the plaintiff says she can show. To dismiss a lawsuit, the judge would have to find there was no set of facts that could support her claim. The employer must show “beyond doubt” that she cannot prove a plausible fact scenario for her retaliation claim.

The court reviewed the papers concerning her termination. It found that the documents were not clear. Neither the memo recommending dismissal or the email concurring in termination mentioned any loss of a security clearance. The letter to the Plaintiff notifying her of her termination does mention a lack of “trustworthiness.” That term matches terminology used for loss of a security clearance. But, said the court, it would be a stretch to conclude from the use of that term that her termination was based on the loss of access to classified material. The letter itself did not otherwise mention the loss of her security clearance.

She might have lost her clearance because she was fired. Or, she might have been fired immediately after losing her clearance. The clearance issue could have come before the termination, or after. The records submitted by the employer did not show one way or the other which came first.

Because the documents are not clear, the motion should be denied. A fact-finder, a jury, should determine what happened. See Johnson v. Southwest Research Institute, No. 15-297-FB (W.D. Tex. 9/28/2016). And, seriously, if the employer makes a claim regarding why someone was fired, but it cannot produce better evidence than the use of one term, with no apparent connection to the decision-making process, then it is either rather very unorganized or it is trying to mis-lead the court. Either way, the employer loses some credibility with the court when it makes an argument based on fairly weak evidence.

In the world of jobs, anything is possible. In the employment world, we deal with human behavior in all its manifestations. We see a crazy case in Fisher v. Lufkin Industries, Inc., No. 15-40428 (5th Cir. 2/10/2017). William Fisher had worked for Lufkin Industries off and on for some 20 years when he was fussed at by his boss, Steve Saxton. “Boy, I don’t know why every time come over here [to Fisher’s work area] its a hassle!” His voice was raised. Mr. Fisher is African-American. Fisher reported the use of the term “boy” to HR and said it was racial. HR tasked another manager to look into the matter. That manager found that the use of the term “boy” was used as exclamation, not in a derogatory way.

[I am not sure what that means, but it could mean Mr. Saxton referred that way to white and black workers.]

Mr. Saxton’s manager. David Jinkins, was also asked to look into the matter. About a month later, a co-worker of Mr. Fisher, David Rhoden, approached Manager Jinkins and said he did not like hearing that Fisher had complained about the use of the term “boy.” Mr. Rhoden said Fisher had said he would get Mr. Saxton fired. During this conversation, Mr. Rhoden mentioned that for a long time, Mr. Fisher had been selling DVD’s out of his lunch box and some of the CD’s were pornographic. Rhodes would later testify that it was Mr. Jinkins who asked about the CD’s.

Manager Jinkins asked Rhoden to buy a CD from Fisher, so they could use it as proof. Rhoden resisted. Jenkins said, “You scratch my back, I’ll scratch yours.” Mr. Rhoden bought a CD a few days later. It turned out to be blank. Mr. Jinkins told Rhoden to try again. This time, the CD was pornographic, said Mr. Jinkins. An investigation ensued. The company said Mr. Fisher violated a company rule in selling CD’s on company property. Mr. Fisher did not deny the accusation, nor did he agree with it. The company officials went to Mr. Fisher’s car to search it. As the search began, Mr. Fisher said he received a call from his wife and he had to go. One official said he heard the phone ring. Two other officials present said they did not hear any phone ring. The car was never searched. Mr. Fisher was fired a day later.

Mr. Fisher filed suit. In his lawsuit, he said he had been subjected to reprisal for opposing discriminatory conduct.

The lower court granted summary judgment. The court said the investigation was retaliatory. Many employees sold things at work. Many employees possessed pornographic material at work. There was no specific rule prohibiting selling things at work. But, Mr. Fisher lied to company investigators and did not cooperate in the search of his car, said the district court. Therefore, said the court, the firing was justified. It granted summary judgment apparently seeing the termination by HR, which meant the HR official was not motivated by retaliation.

On appeal, the Fifth Circuit was perplexed. It noted that the investigation was retaliatory. The lower court found it was retaliatory and facts supported that finding. But, under the cat’s paw theory, a supervisor can act on the retaliatory motive of a subordinate manager. Manager Jinkins appeared to have a retaliatory motive. His investigation and “sting” operation reflected an unusual interest in Mr. Fisher. The investigation would not have occurred but for Rhoden’s and Jinkin’s retaliatory motive. Mr. Fisher’s lack of cooperation with a retaliatory motivated investigation was “inextricably” tied to the retaliatory motive of Jinkins and Rhoden. The actions of Mr. Rhoden and Mr. Fisher were proximate causes of Fisher’s termination. So, the Fifth Circuit panel reversed the grant of summary judgment. See decision here.

Sometimes, employers who are sued for discrimination in turn file their own lawsuit against an employee. I wrote about Wayne Wright and Schlumberger doing this here and here. In Wayne Wright’s case, the employer sued the former employee after she filed with the EEOC. The law firm sued for a declaration that it was justified in firing her. Schlumberger sued its former employee saying she had downloaded confidential information. Schlumbereger was found  to have fabricated its story and was sanctioned.

But, some courts are not convinced that counter-lawsuits amount to retaliation. In Jones v. Frank Kent Motor Co., 2015 WL 4965798 (Tex.App. Ft. Worth 2015 (unpublished), the employee sued Kent Motor Co. The former employer then counter-sued claiming Mr. Jones had participated in a scheme to fraudulently increase bonuses for himself based on customer satisfaction surveys. Kent Motor Co. moved for partial summary judgment. The partial judgment was granted. Kent Motor Co. then non-suited its counter-claims. The court then reinstated Mr. Jones’ retaliation claim. Kent Motor Co. then reinstated its counter-claims. Mr. Jones then amended his Petition to claim the counter-claims were retaliation in themselves. The employer filed an exception to that allegation. The court granted that special exception and the retaliation claim based on the counter-claims as dismissed. After a bench trial, the court found in favor of the defendant.

On appeal, Plaintiff Jones argued that the district court erred in not recognizing a claim of retaliation based on a frivolous counter-claim. Kent Motor Co. had counter-claimed for civil theft, common law fraud, mail fraud, breach of fiduciary duty, and for money received. The court said there was “ample” evidence for Kent Motor Co.’s claims and would not find them to frivolous. Although, it did not explain what that evidence was. It mentioned that eight or nine surveys were sent to Mr. Jones’ home address. But, it did not explain if that meant they were fraudulent, or a common mistake, or what.

The court of appeals made the remarkable claim that in general, Texas does not recognize post-employment retaliation for filing counter-claims. It notes the decision in Burlington Northern &Santa Fe RR v. White, 548 U.S. 53 (2006), which expressly finds that any action can amount to retaliation so long as the action dissuades a reasonable person from filing or supporting a charge of discrimination. It instead relied on a Fifth Circuit case, Hernandez v. Crawford Bldg Material Co., 321 F.3d 528, 532-33 (5th Cir. 2003). Hernandez was almost certainly overruled by White. The Jones court claims three subsequent cases continue to cite Hernandez. But, it does not mention that those three cases cite Hernandez for holdings not related to whether post-termination retaliation can include counter-claims. See Jones, at note 3. See decision here.

This ruling appears to be result-oriented.

Coach Bev Kearney was placed on suspension in 2012 when it was discovered she had a long-term relationship with a student. Even though she had won six national track titles at the University of Texas, she was disciplined when the administration learned of the affair. She was then fired. See my prior posts here and here about her lawsuit.  She filed suit claiming retaliation after complaining about discrimination. She also alleged that she had been treated differently than other white, male coaches and teachers who also had relationships with students. Coach Kearney is African-American. She compared herself to Major Applewhite who had a brief affair with a student in 2009 and to an unnamed volleyball coach. As I mentioned in this post, her case based on disparate treatment would be difficult.

It is difficult to show disparate treatment. Every department is different. Every boss has different standards. Coach Kearney’s affair occurred in 2002. Coach Applewhite’s one-night stand occurred in 2009. But, the trial court and the court of appeals were satisfied that Coach Kearney had alleged sufficient allegations to indicate she could show disparate treatment. The employer had filed a plea to the jurisdiction, which is comparable to a motion for summary judgment. As I mentioned, Coach Applewhite’s affair with a student lasted only one night and he was disciplined for it. A volleyball coach from the late 90’s and Major Applewhite’s treatment, said the court, sufficed to show allegations of disparate treatment. The court noted, however, that the employer mentioned for the first time in its reply brief that the situations involving the volleyball coach or Coach Applewhite were not similar enough to Coach Kearney’s situation.

But, as most courts of appeals would, it declined to consider allegations raised for the first time in UT’s reply brief. From the employee’s perspective, that is fortunate. It is difficult to argue that different supervisors were applying the same standards, or that one infraction is truly similar to another infraction. The employer might well have succeeded in arguing that Major Applewhite’s offense was short-lived, lasting just one night, and that he did receive discipline for it. He may not have been fired, as Coach Kearney was, but the employer could argue that his offense was not as bad. Coach Kearney’s offense was a long-term relationship. I think the plaintiff dodged a bullet in their appeal. Lawyers do make mistakes, and this may have been significant. See the decision in University of Texas at Austin v. Kearney, No. 14-00500, 2016 WL 2659993 (Tex.App. Austin 2016), here.

UT, however, has requested an appeal. It will be interesting to see if the employer can squeeze in its argument that the situations of the other white, male coaches should not apply.

Coach Kearney also alleged she suffered retaliation. The Court of Appeals, however, noted that she cannot both claim to have been singled out for unique treatment and that she suffered reprisal for prior complaints of discrimination. The court of Appeals essentially finds that her pleadings negate the retaliation theory of recovery. That ruling strikes me as overly formalistic. But, the Texas Supreme Court is almost certain to affirm this pro-employer finding.

The Fifth Circuit is a risky place to do business. Sometimes, it just reaches some strange conclusions. The case of Allen v. Radio One of Texas II, LLC, No. 11-20781, 2013 WL 703832 (5th Cir. 2/26/2013) illustrates the lack of predictability at the Fifth Circuit. In that case, Corina Allen worked at a radio station as general sales manager.  After complaints about her from subordinates and co-workers, she was warned and then fired. Three weeks after her termination, she sent a letter threatening the station with a lawsuit and suggesting they settle. The Fifth Circuit seemed to be troubled by this letter. The letter did not mention sex discrimination. The opinion does not say who wrote the letter. But, I would expect her lawyer sent the letter.

A few months later, Ms. Allen filed an EEOC charge alleging sex discrimination. Ms. Allen briefly worked for CBS radio, a competitor to Radio One. About the time of her EEOC charge, she called Radio One seeking business. Ms. Allen had left CBS Radio and was now working for herself. The plaintiff sold radio advertising. Ms. Allen was seeking to do business with her former employer. But, Radio One said they could not do business with her because of her EEOC charge.

It is curious that the appellate decision mentions her brief employment with CBS Radio. She was terminated from that position before her call to Radio One. There is no apparent reason why that brief employment would be relevant. So, it is curious that the higher court mentioned it.

The court’s description that she called Radio One “about” the time of she filed her EEOC charge is also confusing. She must have filed her charge before she called Radio One. Since, Radio One referred to her charge as the reason for not doing business with her. She recorded that phone call. One would think that is pretty clear evidence of retaliatory motive. Radio One refused to do business with her because she had opposed their discriminatory conduct. Or, at least, a jury could see it that way

And, that is how the jury did see it. The issue of whether that refusal to do business with her amounted to retaliation went to the jury. The jury found that refusal did indeed constitute reprisal for filing her EEOC charge. The jury awarded $6,100 in lost income, $10,000 for emotional pain and suffering, and $750,000 in punitive damages. The district court would reform the punitive damages down to the cap of $300,000. But, it still remains a large verdict.

But, as in all trials, the defendant moved for judgment as a matter of law (JMOL) at the close of the plaintiff’s case. The district court denied the motion, saying there was sufficient evidence upon which a jury could find for the plaintiff. As the Fifth Circuit noted, the judgment as a matter of law is a device by which federal courts ensure no jury will reach crazy verdicts. A judge can stop the trial in its tracks by finding, after the plaintiff has presented all her evidence, that not enough evidence has been presented. Or, the defendant can re-new its JMOL motion at the close of the entire trial. At that point again, the judge can take the decision away from the jury. It can rule that the plaintiff does not have sufficient evidence upon which a reasonable jury can find in her favor.

The trial judge in the Allen case denied the motion at the time. But, the defendant appealed the denial of a JMOL. And, that is what the Fifth Circuit looked at.

The higher court said no, the plaintiff had not presented adequate evidence. The higher court simply found that the refusal to do business with Ms. Allen came too long after her termination. It was 18 months after her termination and a year after she filed her EEOC charge. It was not reasonable, said the court, that an employee would contemplate just before filing her EEOC charge that she might not be able to do business in the future because of her complaint. See the court’s decision here.

The court offered no actual analysis other than its own opinion that this fear would not occur to the average employee. The experience of the panel is apparently far different than mine. Because, I can attest that most plaintiffs contemplate just about every possible contingency before they take even the smallest legal action against her employer. Most, perhaps all employees, fret about such a thing until the cows come home.

So, the higher court found there was insufficient evidence for the verdict. That means Ms. Allen gets nothing. She loses her trial. All because one panel of three judges substituted their experience for that of the jury.

Gretchen Carlson has filed suit against Fox News and Roger Ailes for sex discrimination. Ms. Carlson was Miss America in 1989 and is attractive. In her lawsuit, she accuses Mr. Ailes of ogling her, repeatedly commenting about her legs, and once told her she was sexy but “too much hard work.” Nine months ago, he told her she should have had a sexual relationship with him long ago. Things would have been better for her, he assured, if she had. Mr. Ailes is 76 years old. Ms. Carlson is 50.

As the suit points out, Ms. Carlson anchored her own show until a few weeks ago. She was demoted three years ago from a position as host of the morning show when she complained about sexual harassment. She had apparently complained about one of her co-workers, Steve Doocy, who, she said, condescended toward her and treated her in a sexist way. She should, said Mr. Ailes at the time, learn to get along with “the boys.” Mr. Ailes also accused her at the time of being a “man hater.” See CBS news report. I bet Fox’ lawyer really cringes over that last statement.

An employer should not say things like that. The chief executive officer should not bring sex or gender into a discussion when someone complains about sex harassment. That should be a basic principle for avoiding lawsuits. Sex harassment is subjective. It is hard to show. Mr. Ailes gained nothing by making comments suggesting she was not “one of the boys.” If Fox did not then conduct some sort of investigation about her complaints, it will start out in this lawsuit with a deficit. Sex harassment is hard to prove. Retaliation is much easier. At least so far, Ms. Carlson’s case looks pretty good.

 

Monica Hague filed suit against the University of Texas Health Science Center at San Antonio in 2011. Judge Garcia of the Western District granted summary judgment against her in 2013. The Plaintiff appealed to the Fifth Circuit. The higher court reversed summary judgment regarding Ms. Hague’s retaliation claim and affirmed summary judgment regarding her sexual harassment and sex discrimination claims. See Fifth Circuit decision. Ms. Hague argued on appeal that when a supervisor (Dr. Manifold) read a sexually explicit article out loud during a meeting and gave a sexually explicit doll to a co-worker, that conduct amounted to sexual discrimination.  But, Ms. Hague failed to check the block for sex discrimination on the EEOC charge form.

[Note this is a good reason why folks should consult with a lawyer before going to the EEOC. The EEOC workers mean well, but they just do not address every possible issue. Checking the right blocks is very important.]

Ms. Hague’s EEOC charge form did however, include general allegations of sexual harassment, so it did not matter for sexual harassment whether she checked the right block or not. The Fifth Circuit addressed that issue. It found that the actions of Dr. Manifold were not germane, since he was not a supervisor in the sense that he could not take any adverse action against Ms. Hague. So, his conduct did not amount to quid pro quo (something for something) harassment. Looking at her claim as a hostile work environment claim, the court found there were “only” two instances of conduct that could amount to sexual harassment. That means there was no evidence indicating his harassment affected a term or condition of Ms. Hague’s employment.

Regarding the retaliation claim, the court noted that the plaintiff did not address that claim specifically in her brief. But, the lower court did not address the retaliation claim either. The district court (i.e., Judge Garcia) did not address whether the plaintiff satisfied the prima facie requirements of a retaliation claim or not. Addressing the issue of pretext, the plaintiff pointed out that two other female employees who supported Ms. Hague’s complaint were also non-renewed. The plaintiff was not fired directly. Instead, her contract was non-renewed soon after she made her allegations. The court also noted that the deciding official offered two different reasons for the non-renewal. One reason cited budgetary concerns. The other reason was based on an alleged need for a higher pay grade for the position. So, his story changed.

The court did not mention this explicitly, but it also seemed concerned that the reasons offered for the non-renewal of the two other women was subjective (so-called “trust” issues) and not based on performance.

And, the supervisor did state that he no longer trusted Ms. Hague because she filed a grievance about him. His lawyer argued the supervisor meant a separate grievance, not related to any complaint about sex harassment. But, his testimony could be interpreted in various ways, said the court. And, Ms. Hague’s direct supervisor rebutted the higher level managers who claimed Plaintiff Hague’s performance was deficient. Her direct supervisor said her performance was good.

[It is always very helpful when a former supervisor testifies on behalf of the plaintiff.]

So, in the Spring of 2014, the case was then sent back to Judge Garcia for trial. In January, 2016, trial was held. The jury found in favor of Ms. Hague and awarded her $100,000 in lost wages and benefits and $15,000 in compensatory damages. This is typical of many juries. They are generally skeptical about emotional suffering type damages, but are more comfortable awarding lost ages type benefits.

 

The point of summary judgment is to dismiss cases that have no genuine chance of winning in front of a jury, or cases that a jury should not even hear. Summary judgment should result in dismissal of  cases that lack any real issue of fact. Why have a trial if there is no genuine issue? “Summary” means quick. So, if there is no real issue of fact, then it makes sense for the judge to decide the case quickly. But, at some point, some judges have hijacked the summary judgment motion to serve as a vehicle for judicial fact-finding. We see such an example in Wheat v. Florida Parish Juvenile Justice Commission, No. 14-30788 (5th Cir. 1/5/2016).

Lillie Wheat worked as a detention officer at a juvenile detention facility operated by the Florida Parish Juvenile Justice Commission. She rose through the ranks to Assistant Director of Female Services in 2008. In 2009, she took time off under the Family Medical Leave Act for surgery. She was terminated after her leave ran out. She filed suit for FMLA retaliation. She settled her claim and was reinstated to her old job in 2011. The Assistant Director position was filled, so she returned as regular officer but at her old, higher salary. After a couple of issues with juvenile inmates, Ms. Wheat was fired in 2012. She filed suit saying she was fired due to her gender – regarding an issues with a female juvenile inmate – and for FMLA retaliation.

Ms. Wheat advanced several claims for retaliation, a missed raise, the assignment of janitorial duties upon her return, and her request to be transferred away from a difficult juvenile inmate. The majority opinion actually refused to consider many of the retaliation incidents, but did address these three identified acts of retaliation. The majority opinion rejected the janitorial duties claim. Said the court, an “unsupported,” “bare bones” claim that janitorial duties is materially adverse to her career is not enough. The court was saying that her own claim that being assigned janitorial duties was harmful to her career was not enough. The claim lacks “contextual” detail to make that an adverse claim. That finding is counter-intuitive. If a relatively long-term employee like Lillie Wheat cannot testify to what is harmful to her career, who can?

Responding to the dissent, the majority added that there was no evidence that being assigned janitorial duties after being an Assistant Director constituted treating her differently than other detention officers. “Properly read, the record does not exclude the possibility that some ‘janitorial duties’ were expected of JDS officers generally – but especially those, like Wheat, who had just recently been hired or reinstated.” And, in that sentence, the court finds there is no way Ms. Wheat can allege the assignment was adverse.

The court then addressed her positive but late performance evaluations. Although it was positive, it stated that she would not receive a 4% pay raise. Noted the majority opinion, Ms. Wheat checked the box saying she reviewed and agreed with this rating. Ms. Wheat did not appeal this rating at the time. Again in responding to the dissent, the majority argued that the raise “may” have been affected by the lateness of the evaluation. So, that means the dissent agrees she might not meet her burden at trial regarding that factual issue. This possibility is not enough to create a dispute fact, said the majority.

The majority did agree that the termination itself is materially adverse. So, yes, that act does constitute actionable retaliation. Ms. Wheat did show she was treated differently regarding her prior issues with juvenile inmates. Some detention officers were discharged for mis-treating inmates, while others were not. So, the court reversed summary judgment regarding the termination itself.

In dissent, Judge Reeves of the Southern District of Mississippi noted that the majority opinion essentially draws available factual issues against the Plaintiff. For example, regarding the assignment of janitorial duties, Judge Reeves points out that her “bare bones” assertion should be enough. This is summary judgment, not trial. Ms. Wheat is a witness like any other. She also has a relatively long period of working at the detention facility. She is in a position to identify what is harmful to her career. Judge Reeves suggests that simple “common sense” suggests that being assigned janitorial duties when she is senior to many other workers is retaliatory. Or, as the judge explains, whether the janitorial duties were adverse to her is a strong enough issue that a jury should decide it. The dissent pointed to some decisions which explicitly found that a senior person being assigned janitorial duties constitutes negative treatment of that worker.

[Indeed, the majority opinion, seems to countenance that some persons would perceive this assignment as materially adverse when it acknowledges the “possibility.” The court’s use of the word “possibility” suggests a new standard for summary judgment, one that disregards “possible” factual issues. If “possible” facts are now excluded from summary judgment consideration, few cases will pass muster. Too, the disregard of her “unsupported” allegation ignores several cases that find plaintiffs are indeed competent to testify to their own observations. See, e.g. Tolan v. Cotton, 572 U.S. ___, 134 S.Ct. 1861, 1863 (2014); Jacobs v. N.C. Administrative Office of the Courts, 780 F.3d 562, 569 (4th Cir. 2015); Burton v. Freescale Semiconductor, LP, No. 14-50944 (5th Cir. 8/10/2015).]

The dissent pointed out that the Fifth Circuit in Wilson v. Monarch Paper Co., 939 F.2d 1138, 1145 (5th Cir. 1991), found the assignment of a white collar executive to janitorial duties to be retaliatory. But, now, when  this same issue concerns a blue collar executive, the same court finds that no, this treatment was not retaliatory. In a judicial version of a snit, the dissent described the majority’s view as “we-don’t-know-what-janitorial-duties-really” means.

I have to say that phrase is accurate. What sort of evidence is needed to address what janitorial duties mean? Some judges appear to lack experience with real jobs, with real consequences. I am also concerned that the Fifth Circuit seemed to fault the employee in some way for not objecting to her performance evaluation or for not appealing it. Workers who have returned to work as she returned are under a magnifying glass as it is. The majority opinion seems to expect her to disregard the scrutiny and pretend she is a normal worker. That is asking too much from someone who must bring the bread home everyday. All workers tolerate difficult issues from their bosses. Workers who return to work after a lawsuit may have to tolerate even more abuse. It flies in the face of economic reality to expect Ms. Wheat to object to every possible issue. This is a poorly reasoned opinion. See decision here.

Wayne Wright, LLP, whose motto is the law firm demands “respect and justice” for its clients, was sued for pregnancy based discrimination in 2015. The EEOC filed suit after Kendra Taylor-Andrews filed a complaint with the EEOC. Ms. Taylor-Andrews had been employed by Wayne Wright in Houston since 2004. She received favorable performance reviews during her employment. But, in 2011, she told her employer that she was pregnant. The law firm told her it could not accommodate her pregnancy and told her to choose her last day on the job. When she asked for clarification, the firm placed her on a personal improvement plan. Within a week, the firm fired her. Ms. Taylor-Andrews then filed a charge with the EEOC in June.

The employer would have received the charge by July. On August 19, 2011, it filed suit against Ms. Taylor-Andrews in County Court in Bexar County. The law firm sought a declaratory judgment stating it was justified in firing her, court costs and attorney fees. See Wayne Wright, LLP v. Taylor-Andrews, No. 371467. The former case manager was served with the lawsuit in September. The law firm then wisely dropped the lawsuit a week or so after it served the employee. Suing the employee in an EEOC charge constitutes pretty strong evidence of retaliation. Filing a lawsuit regarding civil rights violations should not subject a person to a counter-lawsuit.

The EEOC then filed suit against Wayne Wright, LLP in March, 2015. The EEOC does not file many cases. They can afford to be picky. That the agency was interested in filing this suit indicates it was a strong lawsuit.

A month later, Wayne Wright signed a consent decree agreeing to pay $15,000 in lost wages and $45,000 in compensatory and punitive damages. The law firm also agreed to post notices at all five Texas locations apprising workers of their rights regarding pregnancy discrimination.  See EEOC v. Wayne Wright, LLP, No. 14-CV-00970 (S.D. Tex. 2014).