Tuesday, December 22, 2015

Curing Improper Performance Standards for Federal Employees

When Congress totally revised the U.S. Code governing federal employees in 1979, one of the items on its agenda was to make it easier to remove “poor performers,” based on anecdotal examples of agencies lamenting their inability to discipline such employees. Towards this end, Congress created a new Chapter in Title 5 of the Code, Chapter 43, specifically governing performance. While agencies typically are required to support by preponderance of the evidence a decision to discipline an employee for misconduct, agencies are required to support by substantial evidence – a much lower burden of proof – a decision to remove or demote an employee for unsatisfactory performance. 

The lower burden of proof, however, comes at a price. In order to invoke Chapter 43, agencies are required to prove that they have complied with several statutory requirements, which essentially demand that agencies demonstrate they have clearly told employees the metrics by which performance will be measured, and that they have provided the employees with a reasonable opportunity to demonstrate they can perform satisfactorily. If the agency cannot show it has met these requirements, it cannot prevail.

The MSPB has made clear that in an appeal of a performance-based removal under Chapter 43, it must determine that valid performance standards were used and communicated to the employee prior to considering performance deficiencies. Van Pritchard v. Department of Defense, 117 M.S.P.R. 88, ¶ 19 (2011). In June 2015, the MSPB reaffirmed this principle when it  reversed a performance-based removal because the Agency failed to show that it had developed or communicated valid performance standards to the employee. Pace v. Department of Army, 2015 WL 3630885 (MSPB CH-0432-14-0335-I-1), ¶ 13 (June, 2015). The Pace decision is non-precedential, which means the Board does not see it breaking new ground (Pace, note 1), but it nevertheless provides some useful guidance on the components of a valid performance standard.
To remove an employee for performance under Chapter 43 an Agency must first show that  (1) it has an OPM-approved appraisal system; (2) it has communicated to the employee the performance standards and critical elements of his position; (3)  the performance standards are valid under 5 U.S.C. 4302(b)(1); (4) it warned the employee of the inadequacy of the employee’s performance and gave him/her a reasonable opportunity to improve; and (5) the employee’s performance remained  unacceptable in at least one critical element. Pace, ¶ 13; White v. Department of Veterans Affairs, 120 M.S.P.R. 405, ¶ 5 (2013).  

For performance standards to be “valid” they must “allow for reasonably accurate measurement of performance and protect employees against arbitrary treatment.” Wilson v. Department of Health and Human Services, 770 F.2d 1048, 1052 (Fed. Cir. 1985); see 5 U.S.C. § 4302(b)(1). Critically, however, an employee’s performance does not warrant removal if it is “satisfactory”, which includes “minimally” or “marginally” satisfactory. Accordingly, in order for an employee to have a “reasonable opportunity to improve,” the agency must provide the employee with a Performance Improvement Plan (PIP) which communicates “the standards he must meet in order to be evaluated as demonstrating performance sufficient for retention, i.e., minimally successful, or needs improvement.” Donaldson v. Department of Labor, 27 M.S.P.R. 293, 301 (1985).

The Agency may communicate these minimum standards in the PIP itself or through a memorandum or other communications. Donaldson at 299. The written standards may be supplemented with subsequent communications with the employee. Wilson at 1056; Moltzen v. Department of Labor, 504 Fed.Appx. 912, 916 (Fed. Cir. 2013) (affirming Moltzen v. Department of Labor, 2012 WL 11881192 (M.S.P.B) *2  (non-precedential)).

In Pace, the MSPB refused to sustain the removal both because the Army had failed to state the performance standards at the minimum level needed for the employee to retain his job and because it had failed to supplement the standards in subsequent communications. Pace, ¶ ¶ 1, 13 (2015). The Army’s four-tiered performance system rated employees for each objective with the standards of “Excellence,” “Success,” Needs Improvement,” and “Fails.” Id. ¶ 5. The written standards for the employee’s performance objectives were written at the “Success” level and provided no information as to the performance needed for “Needs Improvement.” Id. ¶ 5. For this reason, the MSPB found the performance standards used to remove Mr. Pace could not sustain his removal. Id.; see Donaldson at 299 (performance standards invalid because employee “was consistently told what was required for a satisfactory rating only, and not for the “minimally satisfactory” or “needs improvement” level”).

The Board in Pace next considered whether the agency had cured through subsequent communications its failure to state the minimum standards. Pace, ¶ ¶ 6-12; see Henderson v. Nat’l Aeron. & Space Admin., 116 M.S.P.R. 96, ¶ ¶ 16, 18; Donaldson at 299 (“[W]e hold here than an agency may inform an employee of his requirements other than in the PIP itself”).  In Moltzen, the Federal Circuit affirmed that “Mr. Moltzen’s performance plan, ‘in light of the supervisor’s efforts at instruction, [was] clear, precise, and specific enough to be ‘objective.’” Moltzen, 504 Fed. Appx. at 916.

In Pace, however, the Agency’s efforts failed to cure the deficiencies of the performance standards. Pace, ¶¶ 6-12. Neither in the PIP nor in subsequent communications did the Agency identify the level of performance necessary for Mr. Pace to avoid removal; indeed, the Agency even failed to  notify Mr. Pace that to avoid removal he did not have to achieve at the “fully successful” level but only at the “needs improvement” level.  Id.

A subsequent memorandum provided to Mr. Pace during the PIP period detailed his performance and concluded that although he had been given many opportunities to perform at the “fully successful” level, he had instead demonstrated unacceptable performance. Id. The Board concluded that, “although the agency informed the appellant of the individual tasks he needed to accomplish during the PIP, it failed to adequately explain to the appellant a sufficiently ‘firm benchmark’ for which he should aim his performance.” Id. at ¶ ¶ 26.

In the space between Moltzen and Pace, it seems, lies the line dividing performance standards that are, or are not, rendered valid by sufficient supplementary communication.

For more information about this post or how you can protect your rights, please contact Mary Kuntz.

Wednesday, December 16, 2015

Can’t You Accommodate Me Like You’ve Done Before?

Employers should tread carefully before withdrawing formal or “informal” accommodations from qualified employees with disabilities. In a string of recent decisions, the EEOC and several federal courts have held that employers violate the Americans with Disabilities Act (ADA)1 when they withdraw an accommodation that was successfully provided to a disabled employee for some period of time.2

Under the ADA, employers are required to provide reasonable accommodations—provide assistance to or make changes to a position or workplace—that enable qualified3 employees with disabilities to perform their job, unless doing so would cause an undue hardship. In this context, what is the outcome when an employer accommodates an employee with a disability, but then withdraws the accommodation, claiming that the accommodation was “unreasonable?” This often occurs when a new supervisor comes along and disagrees with the accommodation, or the employer concludes that the employee’s need for an accommodation is permanent. Ultimately, the issue in these cases is whether withdrawing an accommodation is reasonable under the ADA. Addressing this issue, the EEOC and a number of federal courts have recently precluded employers from asserting that an accommodation was no longer reasonable or that it caused an undue hardship when it had been successfully provided for some period of time.

In De John v. USPS, for example, a postal employee developed thrombophlebitis, which substantially limited his ability to stand. As an accommodation, the agency authorized the employee’s use of a chair, which enabled him to perform his job. After a year, a new manager removed the chair due to “safety hazards.” The Commission found, however, that because the chair had been used for over a year without a safety incident, the discontinuation of an effective accommodation constituted an unreasonable failure to accommodate.

Similarly, in Isbell v. John Crane, Inc., the district court found that a new supervisor’s withdrawal of a two year long accommodation and refusal to make changes to the hours policy was unlawful. In Isbell, the employer allowed an employee who suffered from ADD and bipolar disorder to arrive to work late (10 a.m.) because her medications took some time to take effect. Then a new supervisor came along and inexplicably withdrew her accommodation and also required the employee to report for work at 8:30 a.m. like everyone else. Although the employee submitted further documentation and a new request for her previous accommodation, the employer refused and ultimately terminated her for attendance violations.

In Isbell, the court noted that uniformity of treatment is precisely what the underlying purpose of the ADA rejects, and that the employer failed to provide an adequate reason for subjecting the employee to a one-size-fits-all hours policy. More importantly, the court highlighted that the plaintiff had been receiving the accommodation of a flexible start time for more than two years without difficulty. According to the court, because the employer had previously provided the accommodation of a later start time without any problems, it could not legitimately state that punctuality was an essential function of the job or that a later start time caused the employer an undue hardship. Therefore, the employer’s sudden replacement of the accommodation with a more onerous schedule constituted an unreasonable failure to accommodate.

In another case, Meinen v. Godfrey Brake Service & Supply, Inc., the district court held that an employer could not claim undue hardship in continuing to employ the plaintiff on a part-time basis, as it had done for 18 months. There, the plaintiff suffered from multiple sclerosis, and could only work up to two hours per day, three days per week. The employer allowed plaintiff to work at the parts counter on this part time basis for 18 months, until it terminated him. During this time, the employer created another part-time position to fill the need, and even held open a full time position for the plaintiff in anticipation of him returning to work full time. Noting that it is the employer’s burden to show undue hardship, the court concluded that the employer could not meet that burden under these circumstances.

Similarly, the Seventh Circuit in Miller v. Illinois Department of Transportation held that an employer was required to continue providing an accommodation it had informally provided in the past. There, the employee worked on a bridge crew but had an extreme fear of heights in unsecured environments, which he estimated kept him from performing less than 3% of his tasks. For years, the employer informally accommodated him by allowing other members of the bridge crew to handle those tasks. The employer also regularly allowed bridge team members to swap tasks according to their own limitations. One day, however, the employee was required to walk a bridge beam and suffered a panic attack, resulting in his hospitalization. Later, the employee filed a request for an accommodation that he not be required to work on bridge beams or other unsecured areas at heights above 25 feet, which was denied. After the district court granted summary judgment for the employer, the Seventh Circuit reversed and remanded, finding that Miller’s accommodation request did not require the employer to do anything it was not already doing, and that the jury should be able to consider the employer’s past flexibility in determining whether the accommodation request was reasonable. On remand, the jury found in favor of the plaintiff.

In sum, these cases show that employers may be exposed to liability under the ADA when an accommodation is provided for a period of time, but is suddenly withdrawn with no effective alternative in its place. Significantly, these cases also represent a change in case law under the ADA, particularly given that a number of courts—including the Seventh Circuit—previously held that no inference of reasonableness should be drawn from previously provided accommodations.4 It remains to be seen what future impact these cases will have, but they are nonetheless significant.

This blog was written by Alex Kutrolli.

[1] The anti-discrimination provisions of the ADA were incorporated into the Rehabilitation Act of 1973; therefore, this article is equally applicable to federal employees whose disability rights are governed by the Rehab Act.
[2] The accommodations discussed herein were all provided for at least one year, however, the EEOC and federal courts have not specifically discussed what length of time would qualify to preclude an employer from asserting that the previously provided accommodation was unreasonable or caused an undue hardship.
[3] A qualified individual or employee is one who holds the necessary degrees, skills and experience for the job, and who can perform the essential functions of the job, with or without an accommodation.
[4]The Seventh Circuit in Vande Zande v. State of Wisconsin Dep’t of Admin. previously held that “[an] employer that bends over backwards to accommodate a disabled worker…must not be punished for its generosity by being deemed to have conceded the reasonableness of so far-reaching an accommodation.”

Wednesday, December 9, 2015

Call to Action – Following up on Kellie Greene

The CBS news story last week has sparked new interest in whether the Peace Corps adequately protects volunteers who face assaults. Now, a group of returned Peace Corps volunteers has launched a Petition seeking Kellie Greene’s immediate reinstatement as Director of the Office of Victims Assistance. Mary Kate Shannon says she started this campaign to show her support of Kellie Greene and to provide a place for those who benefited from Kellie’s vigorous advocacy to show their support. The Petition states:
Kellie Greene has proven herself to be a fierce advocate for Peace Corps Volunteers who become victims of crimes during their Peace Corps Service. She holds Peace Corps to a incredibly high but necessary standard. She has ushered in great change within Peace Corps.
In addition to CBS’s story, ABC recently covered some of the repercussions Kellie Greene suffered as a result of her push for change at the Peace Corps. Kellie Greene’s Whistleblower Protection Act case remains pending at the Office of Special Counsel. You can read our prior post here.

Written by Nina Ren.

Wednesday, December 2, 2015

NY Times story on NWC’s settlement of NLRB cases

Today, the New York Times broke news of a settlement that followed after a prominent whistleblower organization and its affiliated law firm were accused of retaliating against staff for whistleblowing. That story is about me and my former co-worker Lindsey Williams. We had filed a labor Board complaint against the National Whistleblowers Center (NWC) after they fired us in 2012 for starting to organize a staff union.

Our case was actually against three entities as Joint Employers: the National Whistleblowers Center (NWC), the National Whistleblowers Legal Defense and Education Fund, and Kohn, Kohn & Colapinto, LLP (KKC). As a non-profit, NWC allowed the organization to apply for grants and receive tax-deductible contributions. As a private law firm, KKC allowed the organization to charge fees to clients and give the partners a personal ownership interest. The Fund acted as an intermediary and handled payroll and health insurance. Williams and I had worked for them from 2008 to 2012. At NWC, she was the Communications Director and I was the Legal Director. All three entities participated in our settlement.

They fired Williams, me and three other co-workers on November 5, 2012, after we announced our plan to organize a staff union. Organizing a union is legally protected concerted activity under Section 7 of the National Labor Relations Act (“NLRA”). We saw a union as a way to achieve transparency of the Joint Employer’s finances after the announcement of the $104 million award granted to one of our clients, UBS whistleblower Bradley Birkenfeld. At a press conference, Stephen Kohn announced that the organization received a portion of this award for attorney’s fees, but he did not say how much. The Joint Employer told the long time staff that despite our hard work and the influx of cash from the historic whistleblower award, the employer was unable to afford the raises it had promised earlier. These raises were promised because we had been working at very low salaries – and sometimes, without any salary at all. After we questioned the veracity of this claimed cashflow problem, the Joint Employer fired all five employees claiming lack of funds.

The Joint Employer offered the staff severance agreements. Williams and I refused to sign the agreement because it included a broad gag clause that would have restrained our freedom to speak about what happened to us. We believed the clause violated the NLRA and was against the stated mission of the National Whistleblowers Center.

So, Williams and I filed unfair labor practice charges with the National Labor Relations Board (“NLRB”) in January 2013. The NLRB investigated the charges and, in October 2014, found enough evidence to proceed with prosecution against the Joint Employer for wrongful termination. We reached a settlement weeks before the trial was to begin in January 2015.

As part of the settlement approved by the NLRB, the Joint Employer agreed to remove all mention of Williams’ and my terminations from their records and posted a notice to all employees that they would not be retaliated against for exercising their legal rights to work collectively to improve their wages and working conditions. Williams and I are prohibited from disclosing the financial terms of the settlement, but we can say that the case was settled successfully.

Visit fearinghonesty.org for more details about the case, including a summary of the facts, copies of the proposed unsigned severance agreements, the unfair labor practice charges, briefs filed in the case, the notice posting required by the settlement and a redacted copy of the final settlement agreement.

I immediately recognized the irony of getting fired by the National Whistleblowers Center. It is unfortunate when any employer chooses retaliation instead of responding to an employee's concern in a legal and ethical manner. All employers, and especially NWC, should follow the law and treat their employees with respect. Still, I appreciate the advocacy I accomplished as Legal Director of the National Whistleblowers Center, and the change brought me to a law firm with a better record for supporting independent professional judgment – Kalijarvi, Chuzi, Newman & Fitch. Our case exposes the risks all employees face when blowing the whistle and the need for comprehensive whistleblower protections.

The NY Times story quotes me as saying, “I recognized that I could wear it [my termination] as a badge of honor.” While this quote is correct, some context would add more meaning. I said this in response to a question of how my experience of getting fired is different from what my clients experience. For most of my clients, the experience of getting fired is embarrassing, distressing and devastating. As a whistleblower advocate, however, getting fired for raising concerns has been a “badge of honor.”

Williams said the following about her experience:
I thought I understood what whistleblowers felt when they were fired for doing the right thing, but this experience has put it into a whole new perspective for me. If you would have told me that I would be fired from the National Whistleblowers Center for standing up for myself and my coworkers, I would have told you that you were crazy. It just goes to show you that any worker can have his or her legal rights violated. I was stunned when the job I loved vanished with a voicemail. I am not sure that I will ever forget that feeling or how I felt in the aftermath. In fact, I hope that I don’t forget. There is a difference between intellectually knowing that whistleblowers suffer emotionally as well as financially, and actually knowing from personal experience what that worker is going through. I am a better advocate now because of my personal experience and I would not hesitate to raise my concerns all over again.
Williams and I are grateful that the NLRB decided to proceed with prosecution of our case. The NLRB staff was instrumental in facilitating the settlement. Still, the case was affected by the limited remedies under the NLRA. The law prevents workers from recovering attorneys’ fees and compensatory damages arising from retaliation. Last year, Representative Keith Ellison proposed the Employee Empowerment Act (H.R. 5280), a bill that would improve remedies for workers suffering from retaliation. The bill failed to pass before the end of the session. Williams and I are asking the Board of Directors of the National Whistleblowers Center (NWC) to publicly state that gag clauses in severance agreements or other employment agreements are against the core mission of the organization, violate the NLRA, and therefore will not be used or enforced by the NWC in the future. Members of the public can sign the coworkers.org petition to the Board of Directors online here.

Our experience has only served to strengthen our commitment to fighting for and protecting workers. After seven months of unemployment, I joined the law firm of Kalijarvi, Chuzi, Newman & Fitch where I continue to represent whistleblowers as a partner in the firm. After eleven months of unemployment, Williams joined the Strategic Research and Campaigns Department at the International Brotherhood of Teamsters as a Campaign Communications and New Media Specialist. In December 2014, Williams started a new position as Communications Director for the Pittsburgh Federation of Teachers.

I appreciate the work of our attorney, Larry Sherman, who represented us during our appeal and settlement negotiations.

For more information about this post or how you can protect your rights, please contact Richard Renner.

Monday, November 30, 2015

No Peace for Peace Corps Volunteers – The “Sinister” Firing of Kellie Greene

On February 22, 2012, our client, Kellie Greene, became the inaugural Director of the Peace Corps Office of Victim Advocacy, an office newly created by the passage of the Kate Puzey Peace Corps Volunteer Protection Act of 2011. The Kate Puzey Act was born from Kate Puzey’s murder, a tragedy that exposed the Peace Corps’ long history of failing to protect its volunteers from serious crimes and its deep-seated culture of victim blaming. (For ABC’s 20/20 report on this, click here.) The Kate Puzey Act created Kellie’s position for the single purpose of overhauling the Agency’s old guard mentality and to transform the agency into one that cared about volunteer safety. Kellie vigorously attempted to do just that: she confronted Peace Corps about its practice of limiting counseling sessions for victims; she confronted Peace Corps’ practice of involuntarily separating volunteers who became victims of crimes; and she confronted Peace Corps about lecturing sexual assault victims about their alcohol consumption. This morning, CBS aired its interview of Kellie, in which she described how she “pushed the Agency to really do what they have the capability of doing”, and how she was so frustrated by the Agency “because they have the ability to do this and it is a choice not to.”

For her advocacy, Kellie faced an outpouring of hostility within the Agency. On April 29, 2015, Peace Corps managers stripped Kellie of her supervisory duties and exiled her from OVA. This action in and of itself violated the Kate Puzey Act, which requires that Kellie report directly to the Director at all times. On April 30, 2015, Peace Corps delegated “all official OVA business matters” to Kellie’s subordinate, who was less committed to victims’ rights and whom the Agency felt was more popular with its staff. On October 5, 2015, the Agency notified Kellie that it was proposing her removal, placed her on administrative leave, and escorted her out of the premises. The proposal itself is rife with unlawful reasons for removing Kellie. It found that other Agency offices did not “like” her. In contrast, the Daily Beast reporter found in his discussions with Peace Corps volunteers that Kellie was well-liked by them, because they felt she was on their side. (For the full article, click here.) Congressman Ted Poe (R-TX), one of the architects of the Kate Puzey Act, opined that the Agency’s action against Kellie “looks very sinister… based on what I know… She… may have asked too many questions.” On November 9, 2015, Peace Corps decided to “mitigate” its penalty to a 120-day suspension.

To put the Peace Corps’ penalty in perspective, other federal employees, some of whom were accused of verbally abusing or publicly humiliating their subordinates, were penalized with 30 day suspensions or less. See, e.g., Hughey v. Dep’t of Treasury, 59 MSPR 480; Gores v. VA, 68 MSPR 100 (1995). Here, Peace Corps accused Kellie of disrupting the Agency culture; in essence, of doing her job.

Kellie’s whistleblower retaliation claims and other disclosures are currently before the Office of Special Counsel, an independent government agency tasked with prosecuting violations of the Whistleblower Protection Act of 1989. For a copy of the Peace Corps’ proposal to remove Kellie, our response, and their final decision, click here, here, and here.

For more information about this post or how you can protect your rights, please contact Nina Ren.

We have written quite extensively about whistleblower rights before:

Tuesday, November 24, 2015

Huge Tax Bill After Huge Back Pay Award? EEOC Provides Relief

Here’s the scenario: a federal employee prevails on an EEO complaint and as part of the relief is entitled to back pay.  Because EEO complaints can take several years to reach a final decision, it is not uncommon for back pay to total more than $100,000 when the dust settles.  The employee will receive that award as a lump sum; if as a result the employee’s income for that year has been pushed into a higher tax bracket, he or she will have to pay more tax than if the income had been earned as it should have been.  Can anything be done about this?

In fact, the EEOC takes the position that, “where an agency pays back pay and other income payments in a lump sum payment, the agency is responsible for a petitioner's proven increased income tax burden. . . . an award to cover additional tax liability for receipt of back pay in a lump sum is available and [] a complainant bears the burden to prove the amount to which he claims entitlement.” Lonnie H. v. Postmaster General, EEOC Appeal No. 0120111230, 2015 WL 6689996, slip op. at *7 (October 22, 2015), citing Goetze v. Dep't of the Navy, EEOC Appeal No. 01991530 (Aug. 22, 2001); Holler v. Dep't of the Navy, EEOC Appeal Nos. 01982627 & 01990407 (Aug. 22, 2001).

The consequences of this principle – to both employees and the federal agencies that employ them – are significant.  In a recent case, we obtained a decision that the FAA had failed to accommodate an Air Traffic Controller, forcing him to retire in January 2010 rather than in September 2013, as he planned.  The EEOC’s Administrative Judge ordered the Agency to pay back pay, including premium and overtime pay, for the 3 years and nine months of his retirement, minus the annuities he received.  In other words, wages that would have been received over four years were received in a single tax year. The gross back pay, before deductions, exceeded $500,000, and the tax will be calculated at the highest tax rate applicable to both his federal and state returns.  It would not be surprising if the tax consequence in this instance approached $100,000.

The EEOC’s approach has become much more clear, and robust, over the past 6 months.  In Marlin K. v. Dep’t. of Homeland Security, EEOC Appeal No. 0120132637, 2015 WL 6957093 (October 30, 2015), after the Agency accepted the Administrative Judge’s decision finding discrimination and awarding back pay, the employee expressed to the Administrative Judge his concern with the potential back pay consequences.  The Administrative Judge did not modify the decision, and the employee appealed solely on the issue of his tax liability.  According to the Commission, “where an Agency pays back pay and other income payments in a lump sum payment the Agency is responsible for a petitioner's proven increased income tax burden.” 

Although in Marlin K. the employee had alerted the Agency and the Administrative Judge to his tax concerns prior to his appeal, the failure of the employee to raise these concerns prior to the Administrative Judge’s decision does not relieve the Agency of its liability.  In Lonnie H., above, the employee was awarded back pay for 5 years and other elements of relief.  Eventually, the employee filed an enforcement petition complaining that the Agency had failed to grant all of his relief, citing the impact of the increased tax burden.  The Agency disputed the employee’s contentions, and with respect to the tax burden, the Agency noted specifically that it had not been ordered to assume the employee’s tax liability and, thus, wasn’t responsible.  The Commission, however, did not adopt the Agency’s reasoning.  Rather, the Commission held that the employee had failed to meet his burden of proving whether he had an increased tax liability and, if so, the amount of that liability.  Specifically, “what Complainant was required to demonstrate was the amount of his tax liability had he been working during the relevant portions of tax years 2002 to 2007; the amount of his tax liability in tax year 2009 due to the lump sum payment; and the difference between those two figures. That dollar amount would represent his increased tax liability.” Lonnie H., slip op. at *8.

The Commission has clearly advised employees what they must do to meet their burden of proving increased tax liability. In Complainant v. Postmaster General, EEOC Request No. 0520150187, 2015 WL 3484628 (May 22, 2015), the employee prevailed on a discrimination claim but appealed the relief awarded by the Agency.  The Commission affirmed the Agency’s award, and denied the employee’s reconsideration request.  However, although the issue was not raised by the employee, the Commission added the following to its Order:
3. After the Agency has calculated and paid Complainant's back pay award, Complainant shall have sixty (60) calendar days following the end of the tax year in which the final payment is received to calculate the adverse tax consequences of any lump sum back pay awards, if any, and notify the Agency. Following receipt of Complainant's calculations, the Agency shall have sixty (60) days to issue Complainant a check compensating her for any adverse tax consequences established, with a written explanation for any amount claimed but not paid.
Id., slip op. at *3.

At this point, the Commission’s position is clear: anytime an employee receives a lump sum back pay award, by March 1 of the following year the employee must provide to the Agency any calculations indicating that the lump sum has resulted in a higher tax bill than would have been paid had the wages been received normally.  The employee may want to obtain professional assistance for these calculations, but the Agency is not obligated to reimburse any fees incurred in this process.  The Agency thereafter has 60 days to pay the increased burden, or explain in writing why any part of the calculation has been rejected.  Presumably, the employee can appeal this determination.  The employee is not required to raise this issue prior to receiving the lump sum.

Employers have long been required to provide “make whole” relief to victims of discrimination.  Now, “make whole relief” includes any increased tax liability resulting from the employee’s prevailing in the first place.

(On September 17, 2015, Representatives John Lewis (D-GA) and Jim Sensenbrenner (R-WI) introduced H.R. 3550, the Civil Justice Tax Fairness Act of 2015 (CJTFA). Senators Susan Collins (R-ME) and Ben Cardin (D-MD) introduced the Senate bill, S. 2059.  The bills would allow employees receiving lump sum awards to average their income through amended returns, paying the taxes retroactively for the relevant years.  This approach would eliminate the higher bracket in the year the lump sum is received and, presumably, save the employer from further reimbursing the employee for the tax liability.)

For more information about this post or how you can protect your rights, please contact George Chuzi.

Want more on taxes? Read our other blog posts on this subject:

Monday, November 23, 2015

KCNF Announces New Partner Richard Renner

Whistleblower attorney Richard Renner has been elected Partner in the Washington, D.C., law firm of Kalijarvi, Chuzi, Newman & Fitch, P.C. (KCNF).

Renner has been an attorney for 34 years and has been associated with (KCNF) since 2013. He practices extensively in whistleblower matters before the U.S. Department of Labor, and in federal trial and appellate courts. He also handles discrimination, retaliation, and other personnel matters for federal and private sector employees and employers.

At KCNF, Renner was the lead attorney in a successful appeal under the Sarbanes-Oxley Act, Wallace v. Tesoro Corp., 796 F.3d 468 (5th Cir. 2015). He submitted successful amicus briefs for the Supreme Court in Lawson v. FMR LLC, 134 S. Ct. 1158 (2014), and for the Fourth Circuit in Foster v. Univ. of Md.-Eastern Shore, 787 F.3d 243 (4th Cir 2015).

Renner has presented papers to seminars for the National Employment Lawyers Association (NELA) where he serves on the national Executive Board and as Co-Chair of the Ethics and Sanctions Committee. He also was a presenter at the American Bar Association’s 7th Annual Labor and Employment Law Conference in 2013.

“We are so pleased to have Richard Renner as a Partner in our firm,” announced KCNF’s Managing Partner, Elaine Fitch. “Richard brings a wealth of employment law experience and applies it on behalf of our clients every day.” Renner was a partner in the Dover, Ohio, law firm of Tate & Renner until the 1995 death of his partner, Alfred Tate. He continued that law office as a solo practitioner until 2008, when he moved to Washington, D.C., to become the Legal Director of the National Whistleblowers Center.

Kalijarvi, Chuzi, Newman & Fitch, P.C., is one of the oldest law firms in Washington devoted to employment law, representing both employees and employers in federal and private sector cases. Founded in 1975 by June Kalijarvi, the firm remains a women-owned business employing nine attorneys.

“KCNF depends on the independent professional judgment of each attorney to give the best advice and representation to each client,” Renner said. “It is truly a professional dream to be a partner in a firm that treasures this pillar of legal practice while advancing the progress of employment law.”

Tuesday, November 17, 2015

Deflating The National Football League

On January 18, 2015, the New England Patriots were playing against the Indianapolis Colts in the American Football Conference (AFC) Championship Game for the opportunity to advance to the Super Bowl. During the first half, Colts linebacker D’Qwell Jackson intercepted a pass thrown by Patriots quarterback Tom Brady. This was a big play, and Jackson decided to keep the football as a souvenir. However, when the Colts’ equipment manager received the football from Jackson, he noticed certain abnormalities; after testing, the manager discovered that the ball’s air pressure was below the acceptable range required by the NFL’s rules. During halftime, the NFL tested all of the Patriots’ footballs, and determined that all 11 were below the required minimum, which gave the Patriots an unfair advantage. Thus began the “Deflategate” controversy.

On May 6, 2015, the NFL released its 139-page investigatory report. The report concluded that it was “more probable than not” that the low pressure in the footballs was caused by someone’s deliberate action. Further, the report concluded that Tom Brady was likely “generally aware” that the deflation had occurred. Within a week of the report’s release, the NFL suspended Brady for four “games” without pay. Brady appealed his suspension through his Union, the National Football League Players Association. Notably, NFL Commissioner Roger Goodell was the decision-maker on this appeal, and unsurprisingly upheld the League’s decision during the June 23, 2015 arbitration. The NFL Players Association again appealed, this time to the United District Court Southern District of New York.

On September 3, 2015, Judge Richard Berman vacated Goodell’s decision to suspend Brady. In doing so, the Court did not focus on whether “Deflategate” in fact occurred. Instead, the Court focused on whether the NFL violated Brady’s due process rights when it suspended him. Significantly, the Court found that Brady did not have adequate notice of his four-game suspension, and could not have reasonably anticipated it. In doing so, the Court also overturned Commissioner Goodell’s arbitration award against Brady.

Judge Berman’s decision is interesting for non-sports enthusiasts for two reasons. One, under the Federal Arbitration Act, judicial scrutiny of arbitration decisions is extremely limited, and awards can be overturned only on very specific grounds. Many companies require arbitration clauses in their consumer and employment contracts, and the arbitrators know that their livelihood comes from the satisfaction of these businesses. As employers win about 85% of forced arbitration cases, employees and consumer advocates protest against mandatory arbitration clauses. The New York Times recently published a series of articles on how forced arbitration protects big companies from accountability. However, at least in the sports arena, courts seem to be more willing to scrutinize arbitration awards. In addition to the Brady case, the Orioles’ also prevailed on November 4, 2015, in the Supreme Court of New York in overturning an arbitration decision that showed “evident partiality”.

Of course, there is another, likely quicker way to help bring an end to forced arbitration: contact your members of Congress and urge them to co-sponsor the Arbitration Fairness Act (AFA), H.R. 2087 and S. 1133. AFA would require that arbitration agreements with employees and consumers be made after the dispute arises – that way arbitrators will know that both parties selected them. Now, the Chamber of Commerce is lobbying Congress to prohibit the Consumer Financial Protection Bureau from regulating forced arbitration in consumer transactions.

Two, Judge Berman’s decision may have positive implications for employees who believe they have been arbitrarily punished for workplace misconduct. The NFL, as an employer, has repeatedly attempted to discipline players for misconduct in an ad-hoc fashion. The Brady case represents the fifth consecutive labor rights victory for the Players Association over the NFL on due process grounds. (The other cases involve “Bountygate”, Ray Rice, Adrian Peterson, and Greg Hardy.) However, employees should still be mindful that these cases involve powerful unions and highly visible players – in other words, not your average employer-employee relationship. In the Brady case, the Officials Locker Room attendant and the Patriots’ equipment assistant remain on indefinite suspension without pay. Nonetheless, with vigorous advocacy, perhaps the legal arguments regarding what counts as reasonable notice of a penalty and when an arbitration decision may be overturned could have a positive effect on employees in general.

For more information about this post or how you can protect your rights, please contact Nina Ren.

Thursday, November 12, 2015

The Vagaries of Employment Law

Two recent cases highlight the intricacies of employment law. Employment law is becoming an increasingly sophisticated practice. Knowing what claims to file, under what statutes, and what to allege, can–and often does–mean the difference between achieving fairness and justice for a client, or losing. But a successful outcome also depends on the facts of the case.

In Myers v. Department of Army, No. DA-0752-12-0396-I-3, 2015 MSPB 58 (November 2, 2015), Stephanie Myers, a Diagnostic Radiologic Technologist of Mammography, appealed the Army’s decision to remove her, claiming that the Army did so in retaliation for her whistleblowing. In order to succeed on this affirmative defense, Myers had to show by a preponderance of the evidence that she made a protected disclosure under 5 U.S.C. § 2302(b)(8), and that the disclosure was a contributing factor in the agency’s personnel action. Myers, 2015 MSPB 58, ¶ 22. A protected disclosure includes “any disclosure…to the Inspector General of an agency…of information which the employee…reasonably believes evidences…gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health and safety.” 5 U.S.C. § 2302(b)(8)(B)(ii).

In Myers’s complaint to the Inspector General, she claimed her first-line supervisor was harassing her, and her first- and second-level supervisors were involved in an inappropriate relationship. Her harassment claims consisted of a decision by her first-line supervisor and the Chief Radiologist to place her on a retraining program following her return from maternity leave, and to issue her a negative performance evaluation. The MSPB has found that allegations of harassment by a supervisor may constitute an abuse of authority. Myers, 2015 MSPB 58, ¶ 14 (citing Herman v. Department of Justice, 115 M.S.P.R. 386, ¶¶ 11-12 (2011) (explaining that an abuse of authority occurs when there is an arbitrary or capricious exercise of power by a Federal official or employee that adversely affects the rights of any person or results in personal gain or advantage to himself or preferred other persons); Murphy v. Department of Treasury, 86 M.S.P.R. 131, ¶ 6 (2001)).

The Board concluded that Myers’s harassment claims constituted an abuse of authority. The Board found that the Agency’s decision in February 2011 to require Myers to undergo retraining was not justified. The Agency had prepared a Memoranda for the Record citing to Myers’s conducting two suboptimal mammograms which resulted in two patients being recalled. Myers, 2015 MSPB 58, ¶ 15. But, as the Board noted, although the recalls occurred in December 2010, the Agency did not prepare the MFRs until April 11, 2011 and April 25, 2011–which was after Myers complained to the Chief Radiologist on April 8, 2011 about the harassment of her first-level supervisor and the inappropriate relationship between her first- and second-level supervisors, and after she informed him of her intent to file a complaint with the Inspector General. Id. at ¶ 16. The Board also found significant that Myers had received a within-grade increase on January 2, 2011, which was at odds with the Agency’s decision to place her on a retraining program on February 23, 2011. Id. at ¶ 17.

The Board also concluded that the Agency’s decision to issue Myers a negative performance evaluation on March 25, 2011 was harassment, given that she successfully challenged the negative evaluation in a grievance, which resulted in elevations of her grades in two critical elements. Id. at ¶ 18.

So far, so good for Myers. But she did not fare so well when it came to her claim that her first- and second-line supervisors were engaging in an inappropriate relationship, which she believed constituted an abuse of authority. “We have held that it is an abuse of authority for a supervisor to give preferential treatment to a subordinate with whom he or she is having an intimate relationship.” Myers, 2015 MSPB 58, ¶ 23 (citing Sirgo v. Department of Justice, 66 M.S.P.R. 261, 266-67 (1995)). In her Inspector General complaint, Myers alleged only that she felt “uncomfortable” bringing her concerns about the hostile work environment to her second-level supervisor’s attention; she did not allege that her second-level supervisor had given her first-level supervisor preferential treatment, or had otherwise exercised his authority in an arbitrary or capricious manner. Id. at ¶ 23.

If the facts of Myers’s case included her second-level supervisor giving preferential treatment to her first-level supervisor as a result of their supposed intimate relationship, and had Myers’s complaint to the Inspector General included the necessary “preferential treatment” language, she may well have succeeded at showing the Agency retaliated against her for making a protected disclosure of abuse of authority concerning the improper relationship.

At least Myers succeeded with making one of her showings that she made a protected disclosure of an abuse of authority, and the Agency retaliated against her as a result of that disclosure. The Board ordered the Agency to cancel the removal, and to retroactively restore her to her prior position. Id. at ¶ 31.

Dianah Rose-Stanley, on the other hand, was not afforded any relief. Ms. Rose-Stanley, a nurse at the Virginia Department of Corrections (VDOC), alleged that the VDOC discriminated and retaliated against her, in violation of the Virginia Human Rights Act (Virginia Code Annotated § 2.2-3900 et seq.) and Title VII of the Civil Rights Act of 1964, as amended (42 U.S.C. § 2000e et seq.) when it reassigned her from a pharmacy nurse position to a building nurse position, and when it transferred her to a facility more than an hour and fifteen minutes away from her home. Rose-Stanley v. Commonwealth of Virginia, No. 2:15CV00007, 2015 WL 6756910, at *1 (W.D. Va. Nov. 5, 2015). The Court quickly dispensed with her claims under the Virginia Human Rights Act, since the VDOC has more than 15 employees, and "the VHRA only creates a private cause of action against employers with more than five but fewer than fifteen employees," and the VHRA only "creates a private cause of action for former employees who were discharged from employment." Id. at *4 (citing Va. Code Ann. Sec. 2.2-3903(B)).

Nor did Rose-Stanley’s claim of discrimination under Title VII survive. The court found, as a matter of law, that her reassignment and transfer from one facility to another were not adverse employment actions. “‘An adverse employment action is a discriminatory act which adversely affect[s] the terms, conditions, or benefits of the plaintiff’s employment.’” Id. at *5 (citation omitted). “Unless the change has caused a significant detriment, ‘reassignment to a new position commensurate with one’s salary level does not constitute an adverse employment action even if the new job does cause some modest stress not present in the old position.’” Id. (citation omitted). Additionally, the court noted, “‘incurring small, additional commuting expenses is not the type of adverse employment action that is cognizable under Title VII.’” Id. (citation omitted). The facility to which Rose-Stanley was being transferred was over one hour and fifteen minutes away from her home, Rose-Stanley, 2015 WL 6756910, at *2. She had previously worked at that facility, but in 2002, asked that she be transferred to her current facility so she could be closer to her family. The VDOC granted her request. The court found that her additional commuting time and expenses could not be considered unreasonable, given that she had previously voluntarily worked at the far-away facility. Id. at *5.

Nor did the court find that the VDOC unlawfully retaliated against Rose-Stanley in violation of Title VII by reassigning her to a less favorable position and by transferring her to the far-away facility. Rose-Stanley claimed that the VDOC made the decision to reassign and transfer her, in retaliation for her complaining about the Director of the Medical Department and how the medical department was being managed. She voiced her complaints during three “dialogue meetings,” which were designed to allow lower-level staff members to voice concerns to management. Id. at *1. One of her concerns was that management was giving medical department employees very little notice when they were required to change shifts or duties. Id. She also alleged that prior to her transfer, she threatened to complain to the warden about her reassignment to a building nurse position. The court concluded that Rose-Stanley’s complaints did not amount to protected activity under Title VII because she never mentioned any perceived sex-based discrimination. Id. at *6. The court explained that Title VII’s anti-retaliation provisions cover an employee’s opposition to an unlawful employment practice, and participation in an investigation or proceeding regarding an unlawful employment practice. Id. (citing 42 U.S.C. § 2000e-3(a)). Because Rose-Stanley did not allege that she told her supervisor or anyone else she believed she was being subjected to discrimination on the basis of her sex, the complaints she made at the dialogue meetings did not constitute protected oppositional activity. Id.

The results may have been different had the VDOC’s actions been pled as unlawful retaliation under Virginia’s Fraud and Abuse Whistle Blower Protection Act, Virginia Code Annotated § 2.2-3009 et seq. Under that Act, no state employer may “discharge, threaten, or otherwise discriminate or retaliate against a whistle blower.” Va. Code Ann. § 2.2-3011(A). A whistle blower is an employee who witnesses or has evidence of wrongdoing or abuse, and who makes a report of wrongdoing or abuse. Va. Code Ann. § 2.2-3010. “Abuse” includes “an employer’s or employee’s conduct or omissions that result in substantial misuse, destruction, waste, or loss of funds or resources belonging to or derived from federal, state, or local government resources.” Va. Code Ann. § 2.2-3010.

If VDOC’s failure to give medical department employees little notice when they were required to change shifts or duties resulted in a substantial misuse, waste, or loss of funds or resources, Rose-Stanley’s complaint of retaliation could possibly have been brought under Virginia’s Fraud and Abuse Whistle Blower Protection Act. Sometimes, fact patterns cause employees’ cases to fall between the cracks of employment statutes designed to protect employees. This may have been the unfortunate circumstance for Ms. Rose-Stanley.

However, there are glimmers of hope in the employment law arena. In DeMasters v. Carilion Clinic, No. 13-2278 (4th Cir. Aug. 10, 2015), the Fourth Circuit joined the Sixth Circuit in concluding that the “manager rule” has no place in Title VII enforcement. Under the “manager rule,” even if a plaintiff had otherwise engaged in oppositional conduct, he or she could not qualify for protection under Title VII because he or she had a duty to report such conduct. Id. at 25-26. The Fourth Circuit explained that the “manager rule” runs counter to Title VII’s broad remedial purpose. Id. at 32.

Victories are possible, even in the context of the vagaries of employment law.

Written by Valerie A. Chastain

Wednesday, November 4, 2015

The Second Circuit “Liked” the NLRB’s Decision in the Facebook “Like” Firing Case.

Employers must tread carefully before disciplining employees for their Facebook activity. In Three D, LLC d/b/a Triple Play Sports Bar & Grille v. NLRB, ---Fed. Appx.---, 2015 WL 6161477, at *1 (2d Cir. Oct. 21, 2015) (Summary Order), the United States Court of Appeals for the Second Circuit affirmed a National Labor Relations Board (“NLRB”) decision which held that the employer violated the National Labor Relations Act (“NLRA”) when it discharged two workers for “liking” and commenting on a Facebook post regarding allegations of improper tax withholdings – i.e. terms and conditions of their employment. Id. at 3-4.

In January 2011, current and former employees of Triple Play Sports Bar & Grille (“Triple Play”) discovered that they owed more in Connecticut income taxes than they expected. Three D, LLC, 361 N.L.R.B. No. 31, at 2 (Aug. 22, 2014).[1] The employees expressed their frustrations regarding the alleged mishandling of their tax withholding to the employer, who scheduled a staff meeting for February with its payroll provider to discuss the employees’ concerns. Id. Before the scheduled meeting, a former employee, LaFrance, posted a status update to her Facebook page: “Maybe someone should do the owners of Triple Play a favor and buy it from them. They can’t even do the tax paperwork correctly!!! Now I OWE money…Wtf!!!!” Id. at 2. An exchange followed which included profanity and negative comments about the workplace. Spinella, a Triple Play employee, liked LaFrance’s status update, and Sanzone commented “I owe too. Such an asshole.” Id. The co-owner learned about the Facebook discussion from his sister (who was Facebook friends with LaFrance) and fired Spinella and Sanzone. Id. at 3. Triple play made no secret that Sanzone and Spinella were fired because of their Facebook activity. In fact, when Sanzone asked why she was being discharged, Triple Play responded that she was not loyal enough to be working for them because of her Facebook comment. Id. The Board found that Triple Play violated the NLRA by discharging them for participating in the Facebook discussion, id. at 1, and the Second Circuit affirmed.

In its decision, the Second Circuit held that the Facebook activity was protected concerted activity under Section 7 of the NLRA[2] because it was part of an ongoing discussion that began in the workplace and concerned complaints about tax liabilities, Triple Play’s tax withholding calculations, and owed back wages. Three D, 2015 WL 6161477, at *2. The court also rejected Triple Play’s contention that the Facebook activity was so disloyal or disparaging as to lose protection under the Act. Specifically, the comments did not mention Triple Play’s products or services, and there was no basis for finding that the employees’ claims regarding improper tax withholdings were maliciously false. Id.

Triple Play argued that, even if the Facebook activity was protected, it lost its protection because it contained obscenities that were made “in the presence of customers.” Id. at 2-3. According to Triple Play, NLRB v. Starbucks, 679 F.3d 70 (2d Cir. 2012) stood for the proposition that an employee’s utterance of obscenities in the presence of customers would not be protected in most or all circumstances. Starbucks involved an employee’s obscenity laced outburst in front of customers during a protest of a policy concerning union pins on work uniforms. Starbucks, 679 F.3d, at 73-74. The court found Triple Play’s reliance on Starbucks misplaced. First, unlike in Starbucks, the Board unequivocally recognized Triple Play’s “legitimate interest in preventing the disparagement of its products or services and … protecting its reputation … from defamation,” when considering whether the Facebook activity was so disloyal or defamatory as to lose protection. Compare Three D, 2015 WL 6161477, at *3, with Starbucks, 679 F.3d, at 79. Second, the comments here were not directed at customers, and accepting Triple Play’s argument that the Facebook discussion took place “in the presence of customers” could potentially chill almost all employee online speech. Three D, 2015 WL 6161477, at *3.

In addition, the court held that Triple Play’s Internet/Blogging policy was unlawful under the NLRA. Id. at *4. The relevant provision is as follows:

[W]hen internet blogging, chat room discussion, e-mail, text messages, or other forms of communication extend to employee revealing confidential and proprietary information about the Company, or engaging in inappropriate discussions about the company, management, and/or co-workers, the employee may be violating the law and is subject to disciplinary action, up to and including termination of your employment…

Three D, 361 N.L.R.B., at 8. According to the court, “employees would reasonably interpret [Triple Play’s] rule as proscribing any discussions about the terms and conditions of employment deemed inappropriate by [Triple Play].” Three D, 2015 WL 6161477, at *4.

In sum, Three D, LLC shows that simply “liking” a post regarding terms and conditions of employment is sufficient participation to constitute protected activity. The outcome may have been different if Spinella or Spanazo also “liked” or posted one of the more defamatory comments. But for now, the Second Circuit decision supports the Board’s rather broad view of employee social media rights. Importantly, employers must remember that the NLRA protects the rights of all employees, unionized or not, to engage in concerted activities for their mutual aid or protection. This includes discussions about wages, working conditions, and improper management practices. To avoid liability, employers should have their social media policies reviewed to ensure that they are not so broad as to reasonably be read to proscribe employee online discussions about the terms and conditions of their employment.

Written by Alex Kutrolli

We have also written about social media previously:

[1] Available at https://www.nlrb.gov/case/34-CA-012915.

[2] Section 7 of the Act guarantees that “[e]mployees shall have the right to self-organization, to form, join, or assist labor organizations … and to engage in other concerted activities for the purpose of … mutual aid or protection …” 29 U.S.C. § 157. Section 8(a) of the Act protects employees’ Section 7 rights by prohibiting an employer from “interfer[ing] with, restrain[ing], or coerc[ing] employees in the exercise of the rights guaranteed in [Section 7] …” 29 U.S.C. § 158(a)(1).

Tuesday, November 3, 2015

Can an employer’s mistake erase an employee’s rights?

Masoud Sharif was a VIP Flight Attendant for Iranian Airlines, and later a Service Director for United Airlines. United fired him last year in a dispute about his use of leave under the Family and Medical Leave Act (FMLA). Now he has appealed his case to the federal Fourth Circuit. His pending case raises the question of whether an employer’s claim of an “honest belief” can prevent a retaliation claim from going to trial. If successful, Sharif’s appeal could make employers strictly liable when they take an adverse action on account of a mistaken belief about the employee’s protected activity.

Before the 1979 revolution in Iran, Masoud Sharif was a VIP Flight Attendant on Iranian Airlines. His flights carried members of the Shah’s government and family. Sharif’s father-in-law had been a colonel in the Iranian Army. In 1981, the new government in Iran imprisoned and tortured Sharif, and he was only able to get out of prison after he divorced his wife. He fled Iran through the mountains. Like some other victims of torture, Sharif began suffering panic attacks.

Sharif came to the United States in 1982, and on April 16, 1990, United Airlines hired him as a Reservation Sales Representative in Sterling, Virginia. Sharif was promoted to Service Director, supervising reservations sales agents and handling irate customers. In 2012, he worked as a Service Director for the four United Club lounges at Dulles Airport. There were about 100 other Service Directors at Dulles.

In 2009, United granted Sharif’s request for intermittent FMLA leave, so he could take leave as necessary to manage his anxiety. United renewed his request each year. In the last approval, United allowed Sharif to take leave, “Up to 1 time per month for a duration of 1 day to 5 days.”

In 2014, Sharif took advantage of United’s employee discount program. United allowed him and his family to travel standby for only the cost of the taxes. His family traveled to South Africa on March 16 and planned to return on March 28 – allowing plenty of time to get back for his March 30 shift. At the airport, he learned that Lufthansa employees scheduled a strike to start on April 2. So many passengers were now traveling that his employee standby travel could no longer get him home on time. After failing to get a standby ticket on any flight March 28 and March 29 – even after offering to pay full fare, Sharif suffered a panic attack and notified United that he would take intermittent FMLA leave. Sharif could not leave South Africa until April 1, and he did not get to Washington, DC, until April 3, 2014.

United eventually decided to fire Sharif, based on management’s belief that he made a false claim about his panic attack in order to take leave on March 30. Sharif took an unexpected retirement to avoid the termination.

Sharif sued United claiming that the decision to terminate him violated the FMLA. The district court dismissed his case, without a trial, concluding that, “Even if United’s investigation was not optimal, no reasonable fact-finder could conclude on this record that Sharif’s supervisors’ suspicions were not honestly held.”

Sharif’s case is unusual in that there is no dispute that United fired Sharif because of his use of FMLA leave – an activity protected by law. There is no dispute that if Sharif had no medical need for the leave, then his request would not be protected. On appeal, he argues that if he actually had the medical need, then he suffered retaliation for taking the leave that is authorized by law (and had already been approved by United).

United and the district court relied on Smith v. Chrysler Corp., 155 F .3d 799, 806-07 (6th Cir. 1998), for the idea that an employer’s “honest belief” that the employee had committed misconduct can permit a court to dismiss retaliation claims at summary judgment. Sharif argues that the belief of one decision-maker does not exclude the jury’s ability to find that discrimination caused the adverse action through the influence of others. This was the Supreme Court’s conclusion in Staub v. Proctor Hospital, 562 U.S. 411 (2011). Moreover, Sharif is not required to prove that anyone at United is lying. If Sharif convinces a jury that United’s explanation is unworthy of belief, that would be sufficient. St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 511 (1993).

At the summary judgment level, United is not entitled to use any evidence that the jury does not have to believe. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000). Sharif points out, “there is no other evidence to support an honest belief.” Just last year, the Supreme Court emphasized this point in the civil rights case of Tolan v. Cotton, 134 S. Ct. 1861, 1867-68 (2014)(“The witnesses on both sides come to this case with their own perceptions, recollections, and even potential biases. It is in part for that reason that genuine disputes are generally resolved by juries in our adversarial system.”)

On appeal, Sharif argues that the lower court’s decision, “would hand every defendant immunity from the employment discrimination laws by allowing it to conduct an investigation that simply stirred the air and ignored the real issues, and then incant the ‘honest belief’ talisman.”

Where a statute creates an entitlement, the employee’s rights cannot depend on the employer’s subjective beliefs. It is the law that determines whether the employee is protected, not what the employer believes about that protection. In Forman v. Small, 271 F.3d 285, 300 (D.C. Cir. 2001), the court stated, “the employer may not proffer a good faith reason for taking retaliatory action.” Otherwise, employers would be rewarded for making mistakes.

In an older labor law case, the Fourth Circuit itself held that

there is a right guaranteed by the Act – the right of an employee to reinstatement after a strike. That right is forfeited by serious strike misconduct. What we hold is that this right is not forfeited by the honest but mistaken belief of the employer that the employee has been guilty of strike misconduct

NLRB v. Industrial Cotton Mills, 208 F. 2d 87, 92 (4th Cir. 1953).

An employee’s right to use the benefits of the law, any law, will be strengthened if the Fourth Circuit can say the same thing in Sharif’s case.

Last week, the National and Metropolitan Employment Lawyers Associations (NELA and MWELA) filed an amicus brief supporting Sharif. Attorney Erik Snyder was the lead author, assisted by Stephen Chertkof, Alan Kabat and Matthew Koski.

By Richard Renner

Thursday, October 29, 2015

Navigating the Murky Waters of Proving Causation

Deciphering the legal and evidentiary burdens of proving causation in discrimination and retaliation cases proves to be a continuing challenge for plaintiffs’ and defendants’ lawyers alike, as well as courts. The Supreme Court’s decisions in Gross v. FBL Financial Services, Inc., 557 U.S. 167 (2009) and University of Texas Southern Medical Center v. Nassar, 133 S. Ct. 2517 (2013) articulating the causation standards in employment discrimination and retaliation cases have utterly failed to create bright-line, well-defined rules, as evidenced in recent cases which reveal this quagmire. In Rochon v. Lynch, No. 2013-0131 (D.D.C. Oct. 9, 2015), the plaintiff, a retired FBI agent, alleged that the FBI refused to issue to him an identification card that would enable him to carry a concealed weapon when he travels, in retaliation for his prior protected activity under Title VII. The magistrate judge issued a Report and Recommendation denying the defendant’s motion for summary judgment, finding that the defendant’s articulation of its legitimate reason for denying plaintiff the identification card, coupled with the plaintiff’s challenge to the proffered justification and attack on the testimony of the defendant’s witnesses, precluded summary judgment. Id. at 16. The District Court reversed and granted defendant’s motion for summary judgment, holding that a plaintiff must provide evidence that the employer’s asserted non-discriminatory reason was not the actual reason (i.e., pretextual), and evidence that the employer intentionally discriminated or retaliated against the employee. Id. at 15 (citing Allen v. Johnson, 795 F.3d 34, 39 (D.C. Cir. 2015)). With regard to the second prong, the District Court found that the plaintiff had not presented sufficient evidence such that “no reasonable jury could find that Rochon was denied the ID card because of his prior protected activity.” Id. at 9 (emphasis added).

In Hernandez-Echevarria v. Walgreens de Puerto Rico, Inc., No. 13-1757, 2015 WL 4644340 (D. P.R. Aug. 4, 2015), a disability discrimination case brought under the Americans with Disabilities Act, the District Court rejected the defendant’s reliance on Gross, 557 U.S. 167, which held that under the Age Discrimination in Employment Act, a plaintiff must “‘prove that age was the ‘but-for’ cause of the employer’s adverse decision.’” Hernandez-Echevarria, 2015 WL 4644340 at *7 (quoting Gross, 557 U.S. at 176). The District Court found defendant’s contention that the Supreme Court had extended the same standard to ADA claims was incorrect as a matter of law. Id.

The ADA was amended in 2008, the District Court explained, to prohibit “discriminat[ion] against a qualified individual on the basis of disability.” 42 U.S.C. § 12112 (emphasis added). “Congress amended ‘the causation language for ADA discrimination from ‘because of’ to ‘on the basis of’…therefore making the ADA discrimination claim less similar to a Title VII retaliation claim.’” Hernandez-Echevarria, 2015 WL 4644340 at *7 (citations omitted). Similarly, the District Court rejected the defendant’s reliance on Nassar, stating the “Supreme Court’s reference in Nassar to the ADA’s prohibition of disability discrimination is nothing more than dicta.” Hernandez-Echevarria, 2015 WL 4644340 at *7.

In Nassar, the Supreme Court considered Congress’s approach to retaliation claims under the ADA as evidence that Title VII retaliation claims could not be proved using a mixed-motive analysis. Nassar, 133 S. Ct. at 2531. Nassar explained that Congress included an express anti-retaliation provision in the ADA (“No person shall discriminate against any individual because such individual has opposed any act or practice made unlawful by this chapter . . . .” 42 U.S.C. § 12203) (emphasis added), just one year before Congress enacted the Civil Rights Act of 1991, which included § 2000e-2(m). Section 2000e-2(m) provides that “[a]n unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice.” 42 U.S.C. § 2000e-2(m). Thus, the Nassar Court concluded, Congress must have intentionally excluded anti-retaliation from § 2000e-2(m). Nassar, 133 S. Ct. at 2531. Consequently, “Title VII retaliation claims must be proved according to traditional principles of but-for causation, not the lessened causation test stated in § 2000e-2(m). This requires proof that the unlawful action would not have occurred in the absence of the alleged wrongful action or actions of the employer.” Id. at 2533.

What the District Court in Hernandez-Echevarria did not do was to explain that Nassar was inapposite because the claim in Hernandez-Echevarria was not one of retaliation for opposing unlawful disability discrimination; rather the claim was for disability discrimination itself, for which the 2008 ADA Amendments permit “the use of ‘indirect evidence’ and ‘mixed motives.’” Hernandez-Echevarria, 2015 WL 4644340 at *8 (citations omitted).

Not only are some lawyers and courts confused as to whether the “but-for” standard or the mixed-motive standard applies to discrimination and retaliation cases (under Gross, the “but-for” standard applies to ADEA cases; under Nassar, the “but-for” standard applies to Title VII retaliation cases, but not to Title VII discrimination cases, for which the mixed-motive analysis applies; under Hernandez-Echevarria, the mixed-motive analysis applies to ADA cases), but they are also confused about whether the familiar evidentiary burden-shifting paradigm articulated in McDonnell-Douglas Corporation v. Green, 411 U.S. 792 (1973) applies. In Walker v. Department of Homeland Security, 798 F.3d 1085 (D.C. Cir. 2015), the District of Columbia Circuit stated that, “[d]iscrimination and retaliation claims are subject to the familiar, burden-shifting framework of McDonnell-Douglas Corp. v. Green . . . .” Id. at 1091 (citations omitted). “A plaintiff must first establish her prima facie case . . . . If the plaintiff clears that hurdle, the burden shifts to the employer to identify the legitimate, non-discriminatory or non-retaliatory reason on which it relied in taking the complained-of action . . . . Assuming the employer proffers such a reason, the ‘central question’ at summary judgment becomes whether ‘the employee produced sufficient evidence for a reasonable jury to find that the employer’s asserted nondiscriminatory or non-retaliatory reason was not the actual reason and that the employer intentionally discriminated or retaliated against the employee.’” Id. at 1092 (internal citations omitted).

However, the burden-shifting analysis does not apply to all discrimination claims. Rather, in Gross, the Supreme Court stated that, “[t]his Court has never held that this burden-shifting framework applies to ADEA claims.” Gross, 557 U.S. at 174. “Unlike Title VII, the ADEA’s text does not provide that a plaintiff may establish discrimination by showing that age was simply a motivating factor.” Id. The Fifth Circuit apparently did not catch that exception. In Salazar v. Cargill Meat Solutions Corp., No. 15-10097 (5th Cir. Oct. 8, 2015), a case of age discrimination under the ADEA, the Fifth Circuit applied the burden-shifting analysis to the plaintiff’s age discrimination claims. Id. at 4-5. And, even though both ADEA and Title VII retaliation claims are subject to the “but-for” causation standard, and the burden-shifting paradigm does not apply to ADEA claims (per Gross), the burden-shifting paradigm does apply to Title VII retaliation claims (per Walker).

Where the burden-shifting analysis applies, to further complicate matters, it is not always clear whether courts require a plaintiff to prove only that the employer’s discriminatory reason was pretextual, or whether a plaintiff must also prove that the employer intentionally discriminated against the plaintiff. In Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000), the Supreme Court articulated the evidentiary burden borne by plaintiffs attempting to prove intentional discrimination through indirect evidence. The Court explained that while the intermediate evidentiary burdens shift back and forth under McDonnell Douglas, “‘[t]he ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.’” Id. at 143 (quoting Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981)) (brackets in original). The Supreme Court, citing to its previous decision in St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993), stated in Reeves it is permissible for a trier of fact to infer the ultimate fact of discrimination from the falsity of the employer’s explanation. Reeves, 530 U.S. at 147 (citing St. Mary’s Honor Center, 509 U.S. at 511). Accordingly, Reeves stated, “[A] plaintiff’s prima facie case, combined with sufficient evidence to find that the employer’s asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated.” Id. at 148.

Despite the Supreme Court’s express instruction in St. Mary’s Honor Center and Reeves, the court in Rochon stated that “the plaintiff’s ultimate burden once the employer has asserted its non-discriminatory or non-retaliatory reason is consistently expressed in the D.C. Circuit’s precedents in the conjunctive. See, e.g., Allen v. Johnson, 795 F.3d 34, 39 (D.C. Cir. 2015) (holding that the court must determine ‘whether the employee produced sufficient evidence for a reasonable jury to find that the employer’s asserted nondiscriminatory [or non-retaliatory] reason was not the actual reason and that the employer intentionally discriminated [or retaliated] against the employee’).” Rochon, No. 2013-0131, at 15 (citations omitted) (emphasis added) (brackets in original). As a result of the D.C. Circuit’s insistence on requiring plaintiffs to offer sufficient evidence to prove not only pretext but also intentional discrimination, the District Court in Rochon concluded that the magistrate judge erred when he found that plaintiff had met his burden after he attacked the defendant’s proffered justification and the sworn testimony of its witnesses. Rochon, No. 2013-0131, at 14-16. However, the D.C. Circuit seemingly changed course when it stated in Walker that a plaintiff is not ‘presumptively required to submit evidence over and above [evidence of pretext] in order to avoid summary judgment.’” Walker, 798 F.3d at 1093 (quoting Aka v. Washington Hosp. Ctr., 156 F.3d 1284, 1292 (D.C. Cir. 1998)) (brackets in original).

Confusing? Yes!

Written by Valerie A. Chastain

Thursday, October 22, 2015

It’s Not The Confederate Flag That’s The Problem: Lying to Federal Investigators

The Department of Justice announced on Monday that Susan R. Thompson of Jacksonville, Florida, has been indicted on two counts of lying to Federal Protective Service investigators about a workplace incident involving the Confederate battle flag. According to the indictment, Thompson, while working for the Army Corps of Engineers, placed a printed picture of a Confederate flag on the desk of her African-American coworker. Afterwards she lied about having done so to Federal Protective Services investigators.

The indictment was brought under 18 U.S.C. § 1001, which makes it a crime to “knowingly and willfully . . . make[] any materially false, fictitious, or fraudulent statement or representation” in a matter within the jurisdiction of the federal government. To establish a violation of 18 U.S.C. § 1001 prosecutors must show that the defendant made a statement that is: (1) false, (2) material, (3) knowingly and willfully made, and (4) about a matter within the jurisdiction of a federal department or agency. United States v. Turner, 551 F.3d 657, 662 (7th Cir. 2008). The penalty for each offense is a fine or imprisonment of not more than 5 years.

Notably, the indictment does not rely on the act of having placed the picture of the Confederate flag on a Black co-worker’s desk, but only on the federal employee’s failure to admit having done so. It is unlikely, in fact, that the picture of a Confederate flag would be judged in itself sufficiently severe to constitute actionable harassment under Title VII’s provisions protecting against a hostile work environment. The Supreme Court has said that to establish a claim of a hostile work environment, an employee must prove that “the workplace is permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993). In a similar case, the Department of Transportation was able to argue successfully that a picture containing the images of a Ku Klux Klansman and the Confederate flag, provided to an African American employee through his agency mailbox, even when coupled with an incident of a co-worker’s placing of a white cloth on his head like a Ku Klux Klansman, was insufficient to create a hostile work environment under Title VII. Kariem J. Davenport v. Dep’t of Transportation, EEOC Appeal No. 01A4849 (Apr. 28, 2005). The Eleventh Circuit upheld an Alabama decision that found that images of the Confederate flag on co-workers’ clothing, even when coupled with racist grafitti in the workplace, did not create an objectively harassing environment as required under Title VII. Adams v. Austal, U.S.A., L.L.C., 754 F.3d 1240, 1256 (11th Cir. 2014); see Dixon v. Coburg Dairy, Inc., 369 F.3d 811, 822 (4th Cir. 2004) (“It is unclear whether a single confederate flag – or set of decals – displayed in the workplace would support a Title VII claim.”) (extensive review of the history of the Confederate battle flag, id. at 823-26 and notes 5-7.).

An employer may be vicariously liable for workplace harassment, but may defend against certain types of harassment claims (those not involving a tangible employment action, such as termination) under Title VII by taking steps to prevent and correct any harassing behavior. Burlington Industries, Inc. v. Ellerth, 524 US 742, 754-61 (1998), Faragher v. City of Boca Raton, 524 US 775, 786-89 (1998). In general, employers who investigate and act on the results of the investigation are shielded from liability. It is just such an investigation that seems to have led to Ms. Thompson’s indictment.

This blog was written by Mary Kuntz.

Thursday, October 8, 2015

Free Speech in the Workplace is Gaining Judicial Protection

Recent court decisions evidence the judiciary’s ongoing evolution of affording employees protection from retaliation for exercising their right to free speech. As with most evolutions, though, there is present an ebb and flow of protections, with the flow slowly outreaching the ebb, and ultimately producing vital and necessary protections to employees exercising their right to free speech.

On October 5, 2015, in Trusz v. UBS Realty Investors, LLC, No. 19323 (to be officially released in the Connecticut Law Journal on October 13, 2015), the Connecticut Supreme Court gave meaningful expansion of free speech rights to both public- and private-sector employees. The plaintiff in Trusz, who was the head of UBS Realty’s valuation unit, made disclosures to UBS Realty management, opposing what he believed was unlawful activity with regard to UBS Realty’s valuation of properties held in various investment funds. Id. at 5. In response to the plaintiff’s disclosures, UBS Realty had an investigation conducted by its own compliance officer and by a third-party auditor, both of whom confirmed that valuation errors had been made, but concluded that the errors were not significant enough to warrant informing UBS Realty’s investors. Less than one month later, UBS Realty terminated the plaintiff. Id. Trusz then sued in federal court, claiming that UBS Realty’s actions violated Connecticut General Statute § 31-51q, which provides that, “[a]ny employer, including the state and any instrumentality or political subdivision thereof, who subjects any employee to discipline or discharge on account of the exercise by such employee of rights guaranteed by the first amendment to the United States Constitution or section 3, 4 or 14 of article first of the Constitution of the state, provided such activity does not substantially or materially interfere with the employee’s bona fide job performance or the working relationship between the employee and the employer, shall be liable to such employee for damages caused by such discipline or discharge, including punitive damages….” Id. at 6, 25. Conn. Gen. Stat. § 31-51q.

UBS Realty contended that Connecticut General Statute § 31-51q did not apply because the plaintiff’s workplace speech did not relate to matters of public concern, and was therefore not protected speech under Garcetti v. Ceballos, 547 U.S. 410 (2006), Pickering v. Board of Education, 391 U.S. 563 (1968), or Connick v. Meyers, 461 U.S. 138 (1983). Trusz at 6. In Garcetti, the Supreme Court held that when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline. Garcetti, 547 U.S. at 421. In Pickering, the Court held that “in evaluating the constitutionality of government restrictions on an employee’s speech, a court must arrive at a balance between the interests of the employee, as a citizen, in commenting upon matters of public concern and the interest of the state, as an employer, in promoting the efficiency of the public service it performs.” Pickering, 391 U.S. at 568. Lastly, in Connick, the Court slightly modified the general balancing test articulated in Pickering, holding that if a government employee’s speech could not be fairly characterized as constituting speech on a matter of public concern, it was unnecessary to scrutinize the reasons for his or her discharge. Connick, 461 U.S. at 150. “Thus, under the Pickering/Connick balancing test, employee speech in a public workplace is protected from employer discipline if it involves a matter of public concern and if the employee’s interest in commenting on the matter outweighs the employer’s interest in promoting the efficient performance of public services.” Trusz at 7.

The District Court in Trusz certified to the Connecticut Supreme Court the question of whether Garcetti or the Pickering/Connick balancing test should be applied to determine the scope of protection afforded to public employees by the free speech provisions of the Connecticut Constitution and the scope of protection afforded to private employees by Connecticut General Statute Section 31-51q. Trusz at 4. In answering this question, the Connecticut Supreme Court found that the balancing test articulated in Pickering and Connick “would minimize unilateral governmental interference with employee speech that is compatible with the legitimate interests of employers more effectively than the rigid Garcetti rule, which categorically denies constitutional protection to any speech by an employee in his or her official capacity, regardless of whether the speech unduly burdens the employer.” Id. at 13-14. The Trusz Court explained that “Garcetti reduced the likelihood that public employees would speak to their employers regarding corrupt practices, threats to the public safety or other illegal or dangerous workplace practices.” Id. at 19. Additionally, the Court reasoned, the “Garcetti standard does not comport with the free speech provisions of the state constitution,” which provides that, “[e]very citizen may freely speak, write and publish his sentiments on all subjects….” Article first, § 4, Connecticut Constitution. Id. at 11, 22. Instead, the Trusz Court held that Justice Souter’s modified Pickering/Connick test (as articulated in his dissenting opinion in Garcetti) provided the proper test for determining the scope of a public employee’s rights under the free speech provisions of the Connecticut Constitution. Trusz at 22. Under Justice Souter’s modified Pickering/Connick test, an employee speaking pursuant to his or her official duties on matters involving “official dishonesty, deliberately unconstitutional action, other serious wrongdoing, or threats to health and safety” is protected by the First Amendment. Id. The Trusz Court concluded that the modified Pickering/Connick balancing test also applies to Connecticut General Statute § 31-51q, id. at 25, because “one purpose of the statute was to protect employees from retribution for speaking about dangerous or illegal workplace conditions.” Id. at 24.

While the Connecticut Supreme Court’s decision in Trusz expands free-speech protections to both public- and private-sector employees, it must be emphasized that this protection is nonetheless relatively narrow. Only speech that involves disclosures of or opposition to “official dishonesty, deliberately unconstitutional action, other serious wrongdoing, or threats to health and safety” is protected. Fortunately, though, Title VII affords broader protection against retaliation for employees brave enough to oppose their employer’s discriminatory practices. And the Fourth Circuit, in DeMasters v. Carilion Clinic, 796 F.3d 409 (4th Cir. 2015), rejected the so-called “Manager’s Rule,” which excluded managers who had a duty to report discrimination from protection against retaliation under Title VII.

In DeMasters, the plaintiff worked as a consultant for Carilion’s Employee Assistance Program. In that capacity, he had provided assistance to an employee who informed him that he was being sexually harassed. DeMasters generated a plan with the employee to report the harassment and to galvanize Carilion’s internal investigation, relayed the employee’s harassment and subsequent increased hostile treatment to Human Resources, and voiced his opinion that HR was not adequately responding to the employee’s reports of harassment. Id. at 413-14. In response, Carilion’s managers interrogated DeMasters, questioning him as to why he “had not taken ‘the pro-employer side,’ and if he understood the magnitude of the liability the company could face if one of its supervisors had engaged in harassment… The managers also told DeMasters that he had not protected Carilion’s interests and that he had left Carilion ‘in a compromised position.’… The EAP department director likewise accused DeMasters of ‘fail[ing] to protect Carilion’ and ‘plac[ing] the entire operation at risk.’” Id. at 414 (brackets in original) (internal citations omitted). DeMasters was terminated just two days after this meeting. In his termination letter, Carilion stated that DeMasters “‘fail[ed] to perform or act in a manner that is consistent with the best interests of Carilion Clinic.’” Id. at 414-15 (brackets in original) (citation omitted).

In his lawsuit, DeMasters claimed that Carilion terminated his employment in violation of Title VII’s opposition clause, which forbids retaliation against an employee who opposes “‘any practice made an unlawful employment practice.’” DeMasters, 796 F.3d at 416 (quoting 42 U.S.C. § 2000e-3(a)). The Fourth Circuit, as well as other Courts of Appeals, has adopted an expansive view of what constitutes oppositional conduct, recognizing that it includes “‘voicing one’s opinions in order to bring attention to an employer’s discriminatory activities,’ Laughlin v. Metro. Wash. Airports Auth., 149 F.3d 253, 259 (4th Cir. 1998),” and “‘complain[ing] about unlawful practices to a manager, the union, or other employees.’” Id. at 417 (quoting Barrett v. Whirlpool Corp., 556 F.3d 502, 516 (6th Cir. 2009)) (brackets in original). The Fourth Circuit reversed the District Court’s finding that the “Manager Rule” applied to DeMasters and rendered him ineligible to qualify for protection under Title VII because as an EAP consultant, “he had a duty to counsel Doe and to relay his complaints to Carilion’s HR department.” Id. at 422. Under the “Manager Rule,” an employee is required to “‘step outside his or her role of representing the company’ in order to engage in protected activity.” Id. at 421 (quotations omitted). Rather, the Fourth Circuit reasoned, “[n]othing in the language of Title VII indicates that the statutory protection accorded an employee’s oppositional conduct turns on the employee’s job description or that Congress intended to excise a large category of workers from its anti-retaliation provisions.” DeMasters, 796 F.3d at 422. Moreover, “[a]pplying the ‘manager rule’ in the Title VII context would discourage these very employees from voicing concerns about workplace discrimination and put in motion a downward spiral of Title VII enforcement.” Id. at 423.

If DeMasters had been decided instead in Connecticut under the principles announced in Trusz, it seems that the result would not have been favorable to DeMasters. In Connecticut, speech is protected in the workplace only insofar as it does not “substantially or materially interfere with the employee’s bona fide job performance or the working relationship between the employee and the employer.” Conn. Gen. Stat. § 31-51q. Under that standard, DeMasters’ speech undoubtedly would not have been protected, because, as Carilion pointed out in its termination letter, DeMasters failed to act in a manner that was consistent with the best interests of Carilion Clinic, in that he had failed to “‘take the pro-employer side.’” DeMasters, 796 F.3d at 414. Fortunately for DeMasters, Title VII and the Fourth Circuit afforded him vital and necessary protection for his oppositional conduct in protecting another employee.