The More You Know…Or Others Think You Know: Fifth Circuit Finds Decision-maker Had Knowledge to Constitute RetaliationThe Fifth Circuit has issued another opinion in the continuing saga of Jackson State University and its past athletic director, Dr. Vivian Fuller—this one about retaliation against a witness. To refresh everyone’s memory: A secretary at JSU filed an EEOC charge claiming that AD Fuller sexually harassed her and then fired her. During its investigation, JSU’s attorneys and the EEOC interviewed Fred Robinson, the Director of Sports Medicine, who witnessed some of the AD’s actions. A month after those interviews, AD Fuller terminated Robinson. He felt it was retaliation for his testimony; JSU said it was due to a reorganization of the athletic department and issues with Robinson’s daily availability.

The District Court Case and Verdict

Robinson sued JSU alleging retaliation under Title VII and the First Amendment. The case went to trial and the two big questions were: 1) Did Dr. Fuller actually know that the EEOC interviewed Robinson, and 2) were the reasons for Robinson’s termination simply pretext for retaliation? At trial, Dr. Fuller denied any knowledge of Robinson’s interviews. Without direct evidence, Robinson offered circumstantial evidence including: 1) He was fired not long after his EEOC interview; 2) JSU’s own attorneys knew about the interview and met with Fuller after the interview; 3) Dr. Fuller started avoiding him after the interview; and 4) JSU’s president had threatened to fire anyone who was against the AD (pretty strong one, there). JSU countered by claiming that Dr. Fuller had already decided to fire Robinson before the interview even occurred and also came up with some other incidents.

The jury sided with Robinson and awarded him just over $30,000 in compensatory damages and $75,000 in punitive damages. JSU moved to set aside the verdict claiming that there was insufficient evidence to show that the decision-maker, Dr. Fuller, had actual knowledge of Robinson’s EEOC interview, so she could not have retaliated against him for it. The court agreed with JSU and overturned the verdict. Robinson appealed.

What the Fifth Circuit Said

The Fifth Circuit narrowed the issue to whether there was legally sufficient evidence that Robinson’s EEOC interview (the protected activity) caused his termination (the adverse employment action). If Dr. Fuller had no knowledge of the protected activity, the termination could not be retaliation. The court noted that direct proof that a decision-maker had knowledge could be “elusive” — almost all of the people being accused of retaliating are going to feign ignorance of anything that could have given them a motive. For example, “I had no idea that Suzie had reported our slippery floors to OSHA! I terminated her only because we no longer needed an accountant.”

In the Fifth Circuit (Mississippi, Louisiana and Texas), for a successful retaliation claim you have to show that the actual decision-maker had knowledge — not just that the corporation had constructive knowledge (as it is in other federal circuits). In this case, JSU argued that all of Robinson’s evidence was merely speculative. However, as the Fifth Circuit noted, it obviously was enough for the jury. The indirect and circumstantial evidence, such as the president’s threat to fire anyone who opposed the AD and the JSU’s attorneys meeting with the AD after the EEOC’s interview with Robinson, were, according to the Court, the “prototypical circumstantial indicators of decision-maker knowledge.” In regular speak, it was enough to convince the jury, and ultimately the Fifth Circuit, that Dr. Fuller knew about Robinson’s interview, despite her denials. The Fifth Circuit reversed the lower court’s striking of the verdict.

What Does this Teach Us?

Just because you have a decision-maker who says he didn’t know about a complaint (or EEOC charge, OSHA report, ADA request, or whatever) before he terminated the complaining employee or one of her witnesses that may not get you off the retaliation hook. Before you pull the trigger, you need to look at all the circumstances surrounding the potential adverse employment decision. Is it close in time to the protected activity (e.g., complaint, testimony)? Who knows about the protected activity, and what access have they had to your decision-maker? Has your CEO or anyone else made any threats or other comments about the claim that could hurt down the road?

As we always say, retaliation can be tricky. You have to not only defend the complaint but also prevent the retaliation fallout. While filing a complaint doesn’t make an employee bulletproof, it should at least make the employer take a good look at any future decisions that may affect that person or his or her supporters.

Calling ICE about Your Plaintiff Could Make You the DefendantAn attorney representing his employer-client calls Immigration and Customs Enforcement (ICE) to inquire about the plaintiff’s immigration status. Is that potentially retaliation under the employment laws? If it is, can the attorney be sued personally for it? According to the Ninth Circuit, the answer is yes on both counts, and the Supreme Court may have the final say on such a scenario.

 

For those of you who are tempted to stop reading because you aren’t a lawyer (and may not care if your lawyer can be sued)—not so fast. If a non-employer can be sued personally for retaliation, this could have broad application to HR professionals, accountants, private investigators, or other consultants.

Background

Jose Arias sued his former employer, Angelo Dairy, for violation of wage-and-hour laws under the California Labor Code. Dairy hired an attorney, Anthony Raimondo, to defend the case. In 2011 as the trial date approached, Raimondo contacted ICE to see about Arias’s immigration status (which apparently was potentially problematic for Arias). This led to Raimondo having multiple communications with ICE about potentially taking Arias into custody. Additionally, it led to disqualification of Arias’ legal counsel, the California Rural Legal Assistance group, which was barred by statute from representing undocumented aliens. A month before trial, Arias agreed to settle the case “due in substantial part to the threat of deportation created by [Raimondo’s] communications with ICE.” Raimondo had apparently contacted ICE on previous occasions related to other employees who asserted workplace rights against his clients.

After settling his wage and hour suit, Arias then filed a retaliation case against Dairy, as well as Raimondo personally. Arias alleged that Raimondo’s call to ICE was retaliation under the FLSA and intentional infliction of emotional distress.

District Court: The Attorney Is Not an Employer and Cannot Be Sued

The preliminary issue was whether Arias could sue Raimondo for FLSA retaliation when Raimondo was not Arias’ employer. The FLSA’s anti-retaliation statute makes it unlawful for “any person” to “discharge or in any other manner discriminate against any employee because such employee has . . . instituted any proceeding under” the FLSA. The Act defines “employer” to include “any person acting directly or indirectly in the interest of an employer in relation to an employee…”

Arias settled and dismissed his retaliation claims against Dairy, but not against Raimondo personally. The District Court dismissed Arias’ complaint against Raimondo, finding that an aggrieved employee can only sue his or her employer under the FLSA and that the FLSA’s provisions referred to an employer-employee relationship. The District Court found that Raimondo never acted “directly or indirectly in the interest of the employer” in employment matters. In coming to this conclusion, the District Court considered “the total employment situation and economic realities of the work relationship.” Arias appealed, and the Ninth Circuit reversed.

Ninth Circuit: The FLSA’s Anti-Retaliation Section Is Broader than Just the Employer-Employee Relationship

On appeal, the Ninth Circuit reversed, explaining that the FLSA provisions for wage-and-hour violations and retaliation claims “are as different as chalk is from cheese.” While the employer umbrella for wage-and-hour claims looks to the economic realities test, when a plaintiff alleges a retaliation claim it “is a different animal altogether.” As the court expressed:

This distinctive purpose [of the anti-retaliation provision] is not served by importing an “economic control” or an “economic realities” test as a line of demarcation into the issue of who may be held liable for retaliation. To the contrary, the FLSA itself recognizes this sensible distinction…. by prohibiting “any person”—not just an actual employer—from engaging in retaliatory conduct.  By contrast, the FLSA’s primary wage and hour obligations are unambiguously imposed only on an employee’s de facto “employer,” as that term is defined in the statute. Treating “any person” who was not a worker’s actual employer as primarily responsible for wage and hour violations would be nonsensical.

The appellate court also seemed disturbed by Raimondo’s “underhanded plan to derail Arias’ lawsuit” and history of reporting employee-claimants to ICE.

Attorney Asks the Supreme Court to Decide

Raimondo did not take kindly to the Ninth’s Circuit’s opinion, and on October 31, 2017, filed a petition for a writ of certiorari, essentially asking the U.S. Supreme Court to hear the case.  Raimondo contended that the Ninth Circuit’s conclusion flouted prior precedent on the FLSA’s definition of employer. The petition noted that the majority of circuits use the economic realities test to determine who is an employer, and do not differentiate between a wage-and-hour versus a retaliation-based claim.

Stay Tuned

If the Ninth Circuit opinion stands, it could have far-reaching consequences for the relationships among employers, their attorneys, and others who could be dissuaded from representing employers or from pursuing certain strategies where they could become potential defendants in FLSA retaliation cases. As Raimondo’s petition tries to illustrate, not just attorneys, but also accountants, HR personnel, and even a gardener, could become defendants for playing some role in an adverse action if ICE has been contacted. An attorney may have legitimate, non-retaliatory reasons for asking ICE about an immigration status, but the ruling may chill attorneys from representing employers and hamper employers’ efforts to secure counsel. We will see if the Supreme Court makes a final determination on this significant issue, but the Ninth Circuit’s decision creates the platform for an individual (attorney or otherwise) who is not the employer and does not control the employer to be sued for retaliation under the FLSA.

The Case of the Breastfeeding Narc: 11th Circuit Confirms Lactating Employee is Covered Under Pregnancy Discrimination ActDoes an employee’s protection under the Pregnancy Discrimination Act (PDA) stop when the employee ceases to be pregnant?  The 11th Circuit Court of Appeals was confronted with this question in Stephanie Hicks v. City of Tuscaloosa, in which Ms. Hicks, a police officer who returned from maternity leave and unsuccessfully sought some accommodation related to breastfeeding. The police department said the requested accommodation was not required and she ultimately left her job, alleging she had been constructively discharged. The 11th Circuit stated that a “plain reading” of the PDA showed that breastfeeding is covered and affirmed the jury verdict in Hicks’ favor.

Factual Background

Stephanie Hicks was an investigator on the narcotics task force of the Tuscaloosa Police Department. After she became pregnant, her supervisor allowed her to work on pharmaceutical fraud cases so she could be off on nights and weekends. Before she left for her FMLA pregnancy leave, Hicks received exceptional performance reviews. However, on her first day back at work after her leave, she was written up. She submitted that some of her superior officers negatively commented on the length of her FMLA leave. The City claimed that Hicks was not willing to meet the demands of a narcotics officer and subsequently transferred her out of that unit and into a patrol unit. The City wrote a letter stating the reasons for her demotion and included an incident where officers came to Hicks’s home to get her police car and she did not come out because she was breastfeeding.

One of the big differences between a narcotics officer and a patrol officer is that a patrol officer must wear a ballistic protective vest all day. Hicks’s doctor wrote a letter to the police chief asking that she be considered for alternative duties because the restrictive ballistic vest could cause breast infections that could lead to problems with breastfeeding. Hicks asked for a desk job so that she would not be required to wear a vest. The Police Department instead only offered her two options:  1) don’t wear a vest; or 2) wear a “specially fitted” vest that left gaping holes. For safety reasons, Hicks did not choose either option and resigned. She sued the City and a jury found in her favor on constructive discharge, pregnancy discrimination, and FMLA interference, awarding her $374,000. The City appealed, arguing that it reassigned Hicks because of her poor performance rather than discrimination.

The Eleventh Circuit’s Take

The 11th Circuit found that Hicks was both discriminated against on the basis of her pregnancy and retaliated against for taking FMLA leave.  Under the PDA, an employer may not discriminate against an employee on the basis of pregnancy, childbirth or “related medical conditions.” The 11th Circuit held that lactation is a related medical condition to pregnancy and therefore, a termination based on a woman’s need to breastfeed violates the PDA. The court went on to make the somewhat obvious statement: “Breastfeeding is a gender-specific condition because it clearly imposes upon women a burden that male employees need not—indeed, could not—suffer.”

However, the court noted, there is an abundance of case law stating that Title VII and the PDA do not mandate that employers  have to provide “special” accommodations to breastfeeding workers. The opinion recognizes that Hicks had a unique case. While the City may not have been required to provide Hicks with special accommodation for breastfeeding, the City’s action in refusing an accommodation offered to other employees compelled her to resign and supported the jury’s verdict. The court went on to cite Young v. United Parcel Service a case that recognized a Title VII claim for a pregnant woman where her employer failed to accommodate her in a lifting restriction, but accommodated other similar non-pregnant employees on worker’s comp. Given these facts, the court upheld the jury verdict.

What Did We Learn?

This decision clearly shows that a breastfeeding employee is still protected under the PDA and employers should take note. While it is not an absolute protection from any supported non-discriminatory adverse employment action, employers should be careful about loose comments about the employee and certainly should engage in an interactive process if approached about a reasonable accommodation. While the 11th Circuit made some blanket statements that breastfeeding employees don’t have to be treated as special, they surely were not ignoring an employer’s obligation under the FLSA that mandates employers to provide reasonable break time for employees to express breast milk for a nursing child for up to one year after the child’s birth. The employer must also provide the lactating employee a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public.