Goldberg Kohn

Client Alert: Retaliatory Discharge Protected Conduct

It certainly seems like retaliation claims are on the rise over the last five years, doesn't it? Numerous news outlets report this uptrend on a regular basis. Our own experience litigating more than 200 wrongful termination cases around the country over the last several years also reflects this growing trend ? retaliation claims are comprising an ever larger portion of our case load. Companies need to be aware of this trend ? both to train their workforce to ensure that retaliation does not occur, but also to be thoughtful of how to defend against the claim should they be sued. 

In a typical retaliatory discharge case, the former employees must establish three essential elements to prove their claim: they engaged in protected conduct, they suffered an adverse action, and a "proximate cause" between the two ? that the protected conduct led to the adverse action. Given the relative ease with which an employee can claim an adverse action occurred for purposes of proving a retaliation claim, a company's litigation defense often focuses on the legitimate reason for the company's action. But companies also should be focused on that first element too. While it may be readily apparent that the employee made some form of complaint at some time prior to being terminated, a company must still ask the question ? was that complaint protected by the statute under which the retaliation claim was brought? 

Sometimes the answer to this question may seem rather obvious. We once defended a banking client that was sued on a retaliatory discharge claim under Title VII. The claim's principal defect: the allegedly protected conduct the plaintiff engaged in related to a complaint about whether a manager followed the bank's internal policies relating to client account information. Title VII, however, requires the protected conduct to relate to a complaint concerning employment discrimination. The underlying activity, while relating to an internal complaint, had nothing to do with Title VII, and thus was not protected conduct under that statute. Not surprisingly, the claim was dismissed.

On other occasions, however, the answer is not so obvious ? so much so that one may even forget to ask the question. There are a few very recent cases that stand as good examples of why a company must always be asking whether the underlying complaint constitutes protected conduct under the pertinent statute. The first opinion was issued by the Seventh Circuit on July 14, 2016 in Hatcher v. Board of Trustees of Southern Illinois and Kempf-Leonard, where Dr. Hatcher was denied tenure and claimed the denial was, in part, because she assisted a student in reporting a sexual harassment claim against another professor. The Seventh Circuit affirmed the district court's holding that Dr. Hatcher was "not engaging in speech protected under Title VII" when she helped the student report the harassment incident. How could a professor assist a student report sexual harassment and not be protected under Title VII, a statute that expressly protects someone who opposes unlawful employment discrimination? In answering this question, the Seventh Circuit focused on the fact that the student was not "an employee of SIU" which "is crucial for Title VII purposes." Title VII requires an employee to "identify an unlawful employment practice that is prohibited by that statute. 42 U.S.C. § 2000r-3(a)." (emphasis in original). As the appellate court concluded, "[w]ithout this essential information, there is no suggestion in the complaint that in supporting the student, Dr. Hatcher was opposing unlawful employment discrimination, and therefore engaging in a statutorily protected activity."  (emphasis in original).  Perhaps Dr. Hatcher would be protected under Title IX (protecting discrimination in education), but the court explained that Dr. Hatcher never made that argument. 

Three days prior to the Hatcher opinion, The Northern District of Illinois issued an opinion in Doe v. TRP Acquisition Inc. dba The Roomplace. In Doe, the plaintiff was an employee, so Title VII could be implicated. But the court dismissed a claim that a female employee was fired for resisting a supervisor's sexual advances, holding that attempts to refuse sexual advances alone do not constitute protected activity under Title VII. Noting that the Seventh Circuit had not weighed in on this issue, the court did find that other Circuits are actually split on the issue, citing to the Seventh Circuit's 2008 opinion in Tate v. Executive Management Services, Inc. (noting that Fifth Circuit found that rebuffing sexual advances alone was not protected conduct while the Eighth Circuit found it to be the "most 'basic form of protected conduct.'"). In Tate, the plaintiff had engaged in a long-running consensual sexual relationship with his supervisor, but then called it off when he got married. He claimed that he was fired for resisting the supervisor's ongoing sexual approaches and a jury entered a verdict in his favor on his retaliation claim. The Seventh Circuit reversed because it concluded that there was no evidence in the record that the plaintiff "believed that [his supervisor's] actions were unlawful." While the plaintiff protested the sexual advances, the court found it to be for "personal reasons" (Tate called it off after he got married) rather than "the legality of [the supervisor's] behavior."

Unlike in Tate, there was no allegation in Doe that there had been a one-time consensual sexual relationship between the manager and employee. Instead, Doe went so far as to allege that her manager sexually assaulted her on an "ongoing basis in unoccupied bathrooms and offices" for a six-month period. Doe finally reported the assault to the police and management. While Doe eventually reported the conduct, the court found that she merely identified the refusal of sexual advances alone as the sole protected activity in her complaint. In reaching its decision, the Doe court noted that the majority of courts in the Northern District of Illinois also find that the refusal of sexual advances alone (even by a direct supervisor who allegedly threatened to fire the plaintiff when she resisted him, as in Doe) as not protected under Title VII.

We, too, were recently involved in a case that was ultimately resolved at the district court and federal appellate court level on the grounds that the plaintiff did not actually engage in protected conduct under the statute giving rise to the claim. In our case, the employee brought a retaliation claim for having been fired 11 months after reporting another employee's potential violation of company policy. Her attorneys argued that the internal report actually was reporting a potential violation of federal law as well.  We argued, and two federal courts so far have agreed, that the employee's prior complaint about a potential policy violation did not constitute protected conduct under federal law. So, we know first-hand the importance of always asking the question ? is the plaintiff's conduct actually protected under the law?  

Which statute is the basis of the plaintiff's complaint in your case? Did the plaintiff complain about conduct that would violate that statute? Ask the question: even if the underlying conduct seems awful, is it actually unlawful

David Morrison is a principal in Goldberg Kohn's Litigation and Labor & Employment Groups. He is national employment counsel for several large, public companies.

August 1, 2016

If you have any questions or wish to discuss these issues, please feel free to contact any of the following attorneys:

David E. Morrison

Michael L. Sullivan

Jon E. Klinghoffer

Also of Interest:
Labor & Employment
Labor & Employment Litigation

The material in this client alert is based on information existing at that time. It should not be construed as legal advice or legal opinions based on any specific set of facts. The information in this publication is not intended to create, and the transmission and receipt of it does not constitute, an attorney-client relationship.

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