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.

DOH! Nuclear Safety Regs Trump ADA Accommodation Request (Thankfully)In a battle between a mentally ill employee seeking accommodation for his job at a nuclear plant and federal nuclear safety codes—-which wins out? The Third Circuit Court of Appeals ended up going with safety codes.

Looking Out for an Erratic Employee

Mr. Daryle McNelis was an armed security guard at Pennsylvania Power and Light’s (PPL) nuclear power plant in Susquehanna. As a nuclear power plant operator, PPL was required by the Nuclear Regulatory Commission (NRC) to have a “fitness for duty” program to show that no employees were mentally or physically impaired in any way that would affect their ability to safely and competently perform their duties. In addition, the NRC required PPL to monitor employees who had access to sensitive areas of the plant to make sure that those employees did not constitute an “unreasonable risk to public health and safety or the common defense and security.” This required employees in those positions to undergo a psychological assessment and be under a “behavioral observation program” to identify aberrant behavior. If an employee’s trustworthiness or reliability was determined to be questionable, the NRC required that PPL terminate the employee’s access.

McNelis had unrestricted access and was responsible for protecting vital areas from radiological sabotage, so he was subject to monitoring. He also was armed. In 2012, McNelis started exhibiting bizarre paranoid behavior (he thought his children’s toys were plotting against him) and was abusing alcohol and “bath salts” (a synthetic recreational drug). A coworker reported this behavior to a supervisor. McNelis was examined by a psychologist who performed fitness-for-duty examinations at nuclear facilities nationwide. The psychologist determined that McNelis was considered not fit for duty. Based on that report, PPL revoked McNelis’s access authorization and terminated his employment. McNelis filed an ADA claim alleging that the psychologist wrongfully diagnosed him and that he could have performed the essential functions of his job, with or without an accommodation. The lower court granted summary judgment in favor of the power company.

Safety First

On appeal, the Third Circuit stated that McNelis could not prove that he was fit for duty under the NRC’s regulations and therefore his claim failed. The court cited numerous opinions holding that nuclear power plant employees who lost security clearance or were deemed not fit for duty are not qualified employees under the ADA. By setting such a standard, the NRC made the legally defined qualification an essential function of certain jobs at nuclear power plants. The court went on to analogize the situation to federal DOT regulations for driving a commercial motor vehicle. If an employee could not pass the DOT medical certification, they were not considered qualified under the ADA. Employers covered by the DOT regulations, such as the power plant being covered by the NRC regs, were not insisting on a job qualification of their own devising, but instead were complying with a regulation that had the force of law.

McNelis attempted to argue that the lower court’s holding diminished ADA protections for workers in sensitive positions of the nuclear industry. The Third Circuit stated that due to the potential danger to the public, it was perfectly rational for the NRC to explicitly require nuclear power plants to screen for traits and behaviors that in other contexts might violate the ADA. The Third Circuit upheld the dismissal of McNelis’s claim.

What Did We Learn?

At first glance, this opinion may only seem to apply to high-public-risk employers such as nuclear plants. However, the Third Circuit pointed to a great deal of case law showing that many other occupations are affected by federal safety regulations—-most commonly, DOT regulations. Employers that are explicitly required to have their employees meet federal safety and medical standards should be aware that those can be considered essential functions of that job. This decision also illustrates that safety, and how an ADA accommodation may affect that safety, is always a consideration during the accommodation interactive process.

Want to Peak at Your Employee's Email? Be Careful!Can you look at an employee’s personal email account if you access it on company equipment? A recent opinion from the federal District Court of Maryland should at least make you think twice before doing that. In Levin, et al. v. ImpactOffice, the court denied a company’s motion to dismiss a former employee’s Stored Communication Act (SCA) claim, which arose out of just such a scenario. The court found that former employee Melissa Edwards could proceed with her claim because the accessed emails were retained on Gmail’s servers “for purposes of backup protection.”

The Facts

By way of background, Edwards and several other former employees filed suit against Impact, seeking a declaratory judgment that the restrictive covenants in their employment agreements were unenforceable. Edwards also asserted a claim under the SCA. In her complaint, Edwards alleges that after she resigned, Impact requested that she return her company-provided cellular phone. Edwards deleted all of her personal Gmail emails before returning the phone. After obtaining the phone, Impact used it to access Edwards’s Gmail account on at least 40 occasions, forwarding some of the emails to Impact’s counsel, including emails between Edwards and her counsel that were sent after Edwards resigned and clearly marked “privileged and confidential attorney-client communications and work product.” Impact also deleted from Edwards’s account all emails that would have revealed the forwarding of her emails to Impact. Edwards later filed suit against Impact, asserting two claims, one under the SCA.

The SCA and the Court’s Decision

A party may be held liable under the SCA where a person “intentionally accesses without authorization a facility through which an electronic communication service is provided . . . and thereby obtains, alters, or prevents authorized access to a wire or electronic communication while it is in electronic storage in such system.” Electronic storage is considered “(A) any temporary, intermediate storage of a wire or electronic communication incidental to the electronic transmission thereof; and (B) any storage of such communication by an electronic communication service for purposes of backup protection of such communication.”

In its motion, Impact argued that Edwards’s SCA claim failed because she did not allege the emails Impact accessed were unopened. As such, the emails did not meet the definition of electronic storage. In response, Edwards argued the emails fell within part (B) of the definition because copies of the emails she deleted from the phone were maintained on Google’s server “for purposes of backup protection.” Therefore the read/receipt status of the email did not matter. While the court acknowledged the read/receipt status of an email could impact whether it fell within part (A) of the definition, the court agreed with Edwards that it was not germane under part (B).

The court ultimately concluded that Edwards had properly alleged a SCA claim under part (B) of the definition of “electronic storage,” relying, in part, on the Ninth Circuit’s holding in Theofel v. Farey-Jones. Specifically, the court found that the emails fell within the definition of electronic storage because they were downloaded or delivered to an electronic device with a copy retained on Gmail’s server. The court, however, excluded from that definition emails that are maintained on an ISP’s server only.


The court noted that applying the definition of electronic storage “is a difficult endeavor because the technology relating to emails and other electronic communication has changed since the enactment of the SCA.” As electronic communication technology advances, that difficulty will only increase. As such, employers should be very wary of accessing an employee’s web-based email account without permission. Doing so could expose the employer to actual damages, statutory damages in the amount of $1,000 per violation of the SCA, and claims for equitable relief and punitive damages, as well as attorney fees.