In Kasten v. Saint-Gobain Performance Plastics Corp. the United States Supreme Court was asked to decide whether an employee’s oral complaints triggered the anti-retaliation protections of the Fair Labor Standards Act (the “Act”), which sets forth employment rules concerning minimum wages, maximum hours, and overtime pay. 563 U.S. ______ (2011).
The anti-retaliation provision of the Act makes it unlawful
“to discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to [the Act], or has testified or is about to testify in such proceeding, or has served or is about to serve on an industry committee.”
29 U.S.C. §215(a)(3).
The Court had to decide whether the statutory term “filed any complaint” included oral as well as written complaints. Kevin Kasten sued his former employer, Saint-Gobain Performance Plastics Corporation (“Saint-Gobain”), following his termination for allegedly failing to record his comings and goings on the timeclock. Kasten argued that he was really terminated in retaliation for making repeated oral complaints about the location of the timeclock. Saint-Gobain’s timeclock was located between the area where Kasten and other workers put on and took off their work-related protective gear and the area where they performed their assigned tasks. As a result, Kasten and the other workers did not receive credit for the time it took them to put on and take off their work clothes, which is contrary to the Act’s requirements. In fact, in a separate lawsuit a District Court in Wisconsin held that Saint-Gobain’s failure to compensate its employees for the time it took to put on and take off work clothes violated the Act. Kasten v. Saint-Gobain Performance Plastics Corp., 556 F.Supp.2d 941, 954 (W.D.Wis. 2008).
Kasten repeatedly told Saint-Gobain about the timeclock’s unlawful location via Saint-Gobain’s internal grievance-resolution procedure and raised the issue with his shift supervisor. Kasten told Saint-Gobain’s human resources manager that the timeclock’s location was illegal, that he was thinking about starting a lawsuit about the timeclock’s placement and that company would lose in court. Kasten claimed in his lawsuit that it was this activity, and not his failure to use the timeclock, that caused Saint-Gobain to discipline and ultimately terminate him in December, 2006.
The District Court granted Saint-Gobain’s motion for summary judgment and dismissed Kasten’s lawsuit on the ground that the Act did not protect oral complaints. On appeal, the United States Court of Appeals for the Seventh Circuit agreed that the Act did not apply to oral complaints and affirmed the District Court’s dismissal of Kasten’s lawsuit. The United States Supreme Court agreed to hear Kasten’s appeal to determine whether “an oral complaint of a violation of the Fair Labor Standards Act is protected conduct under the [Act’s] anti-retaliation provision.” Kasten, 563 U.S. at p.4.
In analyzing the statutory text, the Court considered some dictionary definitions of “file”, which used of the word “file” in connection with oral material, and common usage of the word by legislators, administrators, and judges, which sometimes use the word when referring to oral statements. The Court noted that regulations promulgated by federal agencies sometimes permit complaints to be filed orally and that oral filings were a known phenomenon when the Act was passed. The Court, however, determined that review of the statutory text alone was insufficient to provide a conclusive answer.
The Court next analyzed the Act’s objectives, which are to prohibit labor conditions that are detrimental to the minimum standard of living necessary for health, efficiency, and the general well-being of workers. The Act relies upon information and complaints by employees that seek to enforce their rights under the Act. The Act’s anti-retaliation provision serves to prevent employees from being fearful of economic retaliation and quietly accepting substandard working conditions.
The Court found no evidence in the Act’s legislative history supporting the position that Congress intended to limit the effectiveness of the Act by preventing those employees who cannot read or write from making complaints under the Act. Limiting complaints under the Act to those made in writing would also prevent governmental agencies from using hotlines, interviews and other oral methods to take employee complaints. Thus, the Court held, “to fall within the scope of the antiretaliation provision, a complaint must be sufficiently clear and detailed for a reasonable employer to understand it, in light of both content and context, as an assertion of rights protected by the statute and a call for their protection. This standard can be met, however, by oral complaints, as well as by written ones.” Id. at p.12.
Moreover, the Court noted that the Department of Labor has consistently held that the phrase “filed any complaint” covers oral, as well as written, complaints. See e.g. Goldberg v. Zenger, 43 CCH LC ¶31,155, pp. 40,985, 40,986 (D.Utah 1961). More recently, the Department of Labor set up a hotline for the purposes of receiving oral complaints. The Equal Employment Opportunity Commission has set forth a similar view with regard to oral complaints in its Compliance Manual, Vol. 2, §8-II(B)(1), p. 8-3, and n. 12 (1998).
The Court concluded that the Court of Appeals erred in holding that oral complaints cannot fall within the phrase “filed any complaint” in the Act’s anti-retaliation provision. As a result, the Court vacated the judgment in favor of Saint-Gobain, reinstated Kasten’s complaint and remanded the case to the District Court for trial.
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On March 31, 2011, the New York Court of Appeals upheld a jury’s verdict in favor of two New York City police officers that claimed they were subject to retaliation for opposing discrimination against a third officer on the basis of that third officer’s perceived sexual orientation. Albunio v. City of New York, 2011 WL 1157706 (2011).
In 2002, Captain Lori Albunio was the commanding officer of the Youth Services section of the New York City Police Department. Lieutenant Thomas Connors was operations coordinator of the section and reported to Albunio. Sergeant Robert Sorrenti applied for a transfer into the Youth Services section, was interviewed by Albunio and seemed poised to become the Youth Services section DARE officer, responsible for educating New York City school children about the dangers of drugs. Albunio recommended Sorrenti for the DARE position to her supervisor, Inspector James Hall. Hall decided to interview Sorrenti himself and did so with Albunio present.
According to Albunio, during that interview Hall aggressively questioned Sorrenti about his marital status; whether he had children; and about his relationship with another male officer to whom he had allegedly loaned money, suggesting that the relationship was more than a friendship. After the interview, Hall told Albunio that Sorrenti didn’t seem quite right. Hall later chose another officer for the DARE position and told Albunio that he would not trust Sorrenti working around children.
Several months later, Hall told Lieutenant Connors that there had to be something more to Sorrenti’s relationship with the officer to whom he loaned money and that Hall would not have been able to sleep at night if he knew Sorrenti was working with children. Connors responded that he believed Sorrenti was more than qualified to work with children and showed Hall a favorable performance evaluation that Sorrenti recently received. Following that conversation, Connors formed the opinion that Hall “believed that Sergeant Sorrenti was a child molester and homosexual.” Id. at *2.
Later in 2002, Albunio learned that she was to be removed as the commanding officer of the Youth Services section for utilizing poor judgment when requesting personnel. Hall cited her recommendation of Sorrenti as the prime example. Albunio told Hall that Sorrenti was the better candidate for the DARE position and that she would recommend Sorrenti again if she had the chance to do it over. Albunio was told it would be in her best interest to find another assignment. She did, but it was a much less desirable assignment.
After Albunio told Connors that she was directed to find another assignment, Connors filed a complaint with the police department’s Office of Equal Employment Opportunity alleging that Hall discriminated against Sorrenti based upon Sorrenti’s sexual orientation. After Hall learned of the complaint, Connors decided it was time to leave the Youth Services section. However, while Connors remained with that section he was subject to several adverse employment actions. For example, his geographical assignments and working hours were changed in unfavorable ways; and he was shunned and excluded from meetings with Hall and Hall’s subordinates. When he was finally transferred, he received a less desirable assignment than he expected.
Albunio and Connors filed a lawsuit against the City of New York claiming they were victims of retaliation in violation of the New York City Human Rights Law, Administrative Code §8-107(7). That section states,
“Retaliation. It shall be an unlawful discriminatory practice for any person engaged in any activity to which this chapter applies to retaliate or discriminate in any manner against any person because such person has (i) opposed any practice forbidden under this chapter, (ii) filed a complaint, testified or assisted in any proceeding under this chapter, (iii) commenced a civil action alleging the commission of an act which would be an unlawful discriminatory practice under this chapter, (iv) assisted the commission or the corporation counsel in an investigation commenced pursuant to this title, or (v) provided any information to the commission pursuant to the terms of a conciliation agreement made pursuant to section 8-115 of this chapter. The retaliation or discrimination complained of under this subdivision need not result in an ultimate action with respect to employment, housing or a public accommodation or in a materially adverse change in the terms and conditions of employment, housing, or a public accommodation, provided, however, that the retaliatory or discriminatory act or acts complained of must be reasonably likely to deter a person from engaging in protected activity.”
New York City Administrative Code §8-107(7).
A trial was held and the jury found that the City retaliated against both Albunio and Connors and awarded each monetary damages. The City appealed the jury’s verdict to the Appellate Division, which upheld the verdict in favor of Albunio and Connors. The City appealed that decision to the New York Court of Appeals, the state’s highest appellate court.
The Court of Appeals noted that the issue was whether the record supported the jury’s finding that Albunio and Connors “opposed” the discrimination against Sorrenti based upon his sexual orientation. The court was guided by New York’s Local Civil Rights Restoration Act of 2005 (“LCRRA”), which requires that “the provisions of this title [i.e., the New York City Human Rights Law] shall be construed liberally for the accomplishment of the uniquely broad and remedial purposes thereof, regardless of whether federal or New York State civil and human rights laws, including those laws with provisions comparably-worded to provisions of this title, have been so construed.” Id. at *4. In other words, the court was required to construe Administrative Code §8-107(7) “broadly in favor of discrimination plaintiffs, to the extent that such a construction is reasonably possible. We interpret the word ‘opposed’ according to this principle, and conclude that the evidence supports a finding that both Albunio and Connors opposed discrimination against Sorrenti.” Id. at *4.
According to the court, Connors clearly opposed the discrimination since he filed a discrimination complaint on Sorrenti’s behalf; there was evidence Hall knew of the complaint; and after filing the complaint Connors was subjected to a series of adverse employment actions. The court similarly found that Albunio “opposed” the discrimination although she did not file a formal complaint. Albunio “opposed” the discrimination against Sorrenti when she stated that Sorrenti was the better candidate and that she would choose him again if given another chance. In essence, the court held that the jury could have found that Albunio made her disapproval of Hall’s action clear and voiced her opinion that it was wrong when she made those statements to Hall.
The Court of Appeals affirmed the decision of the Appellate Division and reinstated the jury’s verdict in favor of Albunio and Connors.
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On March 1, 2011, the United States Supreme Court was asked to decide whether an employer was liable for discrimination under the Uniformed Services Employment and Reemployment Rights Act (“USERRA”) for firing a hospital employee that was also a member of the United States Army Reserve. Staub v. Proctor Hospital, No. 09-400, 2011 WL 691244 (2011).
Vincent Staub worked as an angiography technician at Proctor Hospital (the “Hospital”) until he was fired in 2004. The Hospital fired Staub for leaving his desk without permission in violation of a disciplinary notice he previously received called a “Corrective Action.” Staub sued the hospital claiming that he was discharged due to his military obligations in violation of the USERRA.
A trial was held and the jury found in favor of Staub. The Hospital moved for judgment as a matter of law or for a new trial. The United States District Court for the Central District of Illinois denied the Hospital’s motion. The Hospital appealed that decision to the United States Court of Appeals for the Seventh Circuit which reversed the decision of the District Court, granting the Hospital’s motion for judgment as a matter of law and dismissing Staub’s complaint. The United States Supreme Court agreed to hear Staub’s appeal to “consider the circumstances under which an employer may be held liable for employment discrimination based on the discriminatory animus of an employee who influenced, but did not make, the ultimate employment decision.” Id. at *2.
In January 2004, Staub was issued a disciplinary warning called a “Corrective Action” by his immediate supervisor, Janice Mulally, for allegedly leaving his work area without permission. Staub disputed the “Corrective Action” on two grounds: the rule Mulally relied upon did not exist and, even if it did, Staub did not leave his work area.
In April 2004, Staub was, once again, accused of leaving his work area without permission. Staub denied the allegation and claimed he left Mulally’s supervisor, Michael Korenchuk, a voice mail notification that he was leaving his work area. Linda Buck, the Hospital’s vice president of human resources, relied on Korenchuk’s accusations and, after reviewing Staub’s personnel file, decided to fire Staub. The official reason for Staub’s firing was that he ignored the directive of the January “Corrective Action.” Staub challenged his firing through the Hospital’s grievance process claiming that Mulally fabricated the allegation underlying the “Corrective Action” out of hostility toward Staub’s military obligations. Despite Staub’s claims, Buck refused to change her decision.
Staub thereafter sued the Hospital under the USERRA, which states:
A person who is a member of … or has an obligation to perform service in a uniformed service shall not be denied initial employment, reemployment, retention in employment, promotion, or any benefit of employment by an employer on the basis of that membership … or obligation.” 38 U.S.C. §4311(a).
An employer shall be considered to have engaged in actions prohibited … under subsection (a) if the person’s membership … is a motivating factor in the employer’s action, unless the employer can prove that the action would have been taken in the absence of such membership. 38 U.S.C. §4311(c).
The Supreme Court determined from the evidentiary record that Mulally and Korenchuk were hostile to Staub’s military obligations. The Court accepted as true Staub’s allegations that Mulally scheduled Staub for additional shifts without notice so that he could “pay back the department for everyone else having to bend over backwards to cover [his] schedule for the Reserves.” Id. at *2. Mulally also told one of Staub’s co-workers that his military duty “had been a strain on the department” and asked that co-worker to help Mulally “get rid of him [Staub].” Id. Korenchuk referred to Staub’s military obligations as “a bunch of smoking and joking and a waste of taxpayer’s money.” Id. Korenchuk was also aware that Mulally was “out to get” Staub. Id.
The Supreme Court determined that it was necessary to construe the phrase, “motivating factor in the employer’s action.” Id. at *4. The problem arises when the company official making the adverse employment decision “has no discriminatory animus but is influenced by previous company action that is the product of a like animus in someone else.” Id. The Supreme Court held that “if a supervisor performs an act motivated by antimilitary animus that is intended by the supervisor to cause an adverse employment action, and if that act is a proximate cause of the ultimate employment action, then the employer is liable under USERRA.” Id. at *6.
Applying that analysis to the facts, the Supreme Court decided to reverse the Court of Appeals decision dismissing Staub’s complaint. It found that both Mulally and Korenchuk were acting within the scope of their employment when they took the actions that caused Buck to fire Staub. There was evidence that Mulally and Korenchuk were motivated by hostility toward Staub’s military obligations. There was also evidence that the actions of Mulally and Korenchuk were “causal factors underlying Buck’s decision to fire Staub” as Buck clearly relied upon the allegation that Staub ignored the January “Corrective Action.” Id. Finally, there was evidence that both Mulally and Korenchuk intended to get Staub fired. Id. The Supreme Court remanded the case to the Court of Appeals so that court could determine whether a new trial was necessary.
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The United States District Court for the District of New Jersey recently decided that a pregnant employee who was fired was not permitted to sue for gender discrimination under New Jersey’s Law Against Discrimination (“LAD”) N.J.S.A. §10:5-12(a); disability discrimination under the Americans With Disabilities Act (“ADA”) 42 U.S.C. §12112(a); or discrimination under the Jury Service Improvement Act (“JSIA”) 28 U.S.C. §1875(a). Schwinge v. Deptford Twp. Bd. of Ed., No. 09-5964, 2011 WL 689615 (D.N.J. 2011).
The employee, Lisa Schwinge, claimed she was terminated for several reasons; becoming pregnant, missing work to serve on jury duty and suffering from a serious back injury. Schwinge served state jury duty in late 2007/early 2008. At that time she was also suffering from herniated and bulging discs in her spine. In February 2008, she revealed to her employer, the Deptford Township Board of Education (the “Board”), that she was pregnant.
Shortly after that revelation, she received her first negative performance evaluation in the two years she was employed by the Board. When Ms. Schwinge asked about her Family Medical Leave rights, she was told that she would be terminated when her contract expired in the near future.
Schwinge initially filed suit against the Board in the Law Division of the Superior Court of New Jersey. She claimed gender and disability discrimination under the LAD; disability discrimination under the ADA; and discrimination under the JSIA. The Board exercised its right to transfer the case to the United States District Court for the District of New Jersey and filed a motion to dismiss Schwinge’s complaint for failure to state a claim upon which relief could be granted.
The District Court granted the Board’s motion and dismissed Schwinge’s claims of discrimination under the LAD, ADA and JSIA. The Court reasoned that Schwinge satisfied the first three elements of her LAD claim; 1) she belonged to a protected class (pregnant person); 2) her positive performance evaluations before 2008 showed she was performing her job to her employer’s legitimate expectations; and 3) she suffered an “adverse employment action” in that she was terminated. However, Schwinge was unable to establish the fourth element; that the Board hired someone not a member of the protected class – someone that was not pregnant – to perform the same job following Schwinge’s termination. There was no evidence that the Board replaced Schwinge with a non-pregnant employee. The Court similarly dismissed Schwinge’s disability discrimination claim under the ADA for the same reason; an inability to establish the fourth element of her claim.
The Court held that the JSIA only applied to federal jury service, not state jury service. Since Schwinge served on a state jury, she was not protected by JSIA. As a result, the Court dismissed her claim of discrimination under the JSIA.
The Court also reasoned that Schwinge’s claim of disability discrimination under the ADA had to be dismissed due to Schwinge’s failure to exhaust administrative remedies. An individual claiming disability discrimination under the ADA is required to file a Charge of Discrimination with the Equal Employment Opportunity Commission (“EEOC”) or analogous state agency and receive a “right-to-sue letter” before a complaint may be filed in court. The evidence revealed that Schwinge withdrew her EEOC claim before the process was complete and before receiving a “right-to-sue letter.” As a result, the Court held that her ADA disability discrimination claim was barred due to her failure to exhaust administrative remedies.
© 2011 Nissenbaum Law Group, LLC
In a recent decision, the U.S. Supreme Court permitted an employee to sue the company that fired him on the grounds that the firing was in retaliation for his fiancée’s claim of sex discrimination against the company.
Eric Thompson and his fiancée Miriam Regalado each worked for North American Stainless (NAS). In February 2003, Regalado filed charges of sex discrimination against NAS with the Equal Employment Opportunity Commission (EEOC). Three weeks later, NAS fired Eric Thompson. As a result, Thompson sued NAS under Title VII of the Civil Rights Act for unlawfully firing him in retaliation for the charges brought by Regalado. Per the Supreme Court, the case raised two important questions: 1) Did NAS’s firing of Thompson constitute unlawful retaliation? 2) If so, could Thompson sue NAS under Title VII?
The Supreme Court held that NAS’s firing of Thompson was unlawful retaliation. Title VII prohibits employers from taking action that might discourage a reasonable worker from making or supporting claims of discrimination. The Court believed it “obvious that a reasonable worker might be dissuaded from engaging in protected activity if she knew her fiancée would be fired.” Thus, NAS’s firing of Thompson was in retaliation for Regalado’s charges of sex discrimination against it. The Supreme Court also held that Thompson was permitted to sue NAS under Title VII. The Court found that NAS sought to harm Regalado by firing Thompson, which placed Thompson within the “zone of interests” sought to be protected by Title VII. Specifically, Thompson had an interest in being protected from NAS’s unlawful actions which were intended to harm Thompson and punish Regalado. As a result, Thompson qualified as an “aggrieved person” under the statute and was permitted to sue NAS. Download ERIC L. THOMPSON, PETITIONER v. NORTH AMERICAN STAINLESS, LP
This decision demonstrates the extent to which Title VII protects employees that are directly or indirectly affected by the unlawful actions of their employers.
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