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.