Marshall's Law

PERSPECTIVES

Recent rulings reject retaliation rights

"[T]he further deterrent of massive retaliatory power." - U.S. Secretary of State John Foster Dulles (1954)

By Marshall H. Tanick

Retaliation claims constitute one of the fastest growing, most potent types of employment lawsuits. The momentum has been spurred by the ruling of the U.S. Supreme Court in Burlington Northern and Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006), which made it easier for employees to avoid summary judgment in retaliation claims under Title VII of the Civil Rights Act.

But there are a variety of laws, mostly at the state level, in addition to the Civil Rights Act, that proscribe retaliatory action against employees who engage in protected activities. The federal and state courts in Minnesota recently addressed five retaliation cases.

The quintet show the difficulties that employees face when pursuing claims for retaliation, or reprisal, in the workplace. They must overcome a number of factual and legal obstacles to get their cases before a jury.

The cases involved some similarities. Two of them involved reprisal claims by nurses and two by prison personnel. Four of them had the same result: the employees claiming retaliation lost their lawsuits, but a discharged teacher managed a breakthrough by securing reversal of dismissal of her rare discrimination and retaliation case.

Compensation Claim

In Lundquist v. Rice Memorial Hospital, 2008 WL 467439 (Minn. App. Feb. 27, 2008) (unpublished), a hospital nurse, who was fired after she sustained a neck injury and filed a worker's compensation claim, sued for violation of the anti-retaliation provision of the worker's compensation law, Minn. Stat. § 176.82, subd. 1.

The Kandiyohi County District Court dismissed the lawsuit, and the Appellate Court affirmed. The employee failed to satisfy the three-prong test for retaliatory discharge, modeled after the McDonnell Douglas "burden-shifting test used in employment discrimination cases."

The trial court properly dismissed the lawsuit under Rule 41.02(b) of the Minnesota Rules of Civil Procedure after the nurse finished presenting her evidence because the hospital met its "burden under the second part of the ... test when it produced evidence that [the nurse] was discharged because she was unable to physically perform her job." Since her injuries made her "unable to perform her job," the hospital had "a legitimate, non-discriminatory reason" for discharging her.

This determination shifted the burden to the claimant to show that the proffered reason for her termination was pretextual, which she failed to do. While the termination, which took place shortly after she filed a claim for worker's compensation benefits, constituted "some evidence of retaliation," it was insufficient to satisfy the third prong of the McDonnell Douglas standard.

Although the nurse presented a litany of evidence that might establish a "genuine issue of material fact of retaliation," the trial court did not abuse its discretion in determining that the "proffered evidence was unpersuasive to satisfy the "burden under the third prong of the McDonnell Douglas test." Therefore, the trial court, sitting as a fact-finder, properly dismissed the case even before the hospital presented its defense.

Federal Fights

Another nurse met the same fate in a trio of legal retaliation fights decided adversely to employees by the Eighth Circuit.

In Skare v. Extendicare Health Services, Inc., 2008 WL 341464 (8th Cir. Feb. 8, 2008), a director of nursing oversaw compliance at facilities for the elderly was barred from pursuing a claim under the Minnesota whistleblower law, Minn. Stat. § 181.932, under the "duty" doctrine, which prohibits employers from pursuing whistleblower claims for concerns that they raise within the scope of their duties. U.S. District Court Judge Richard Kyle, Jr., in Minnesota held the employee's reporting of compliance problems and expression of related concerns, which preceded her discharge, they did not constitute protected activity under the statute because she had a "duty" to report those matters.

The Eighth Circuit affirmed, in a decision written by Judge Diana Murphy of Minnesota. The nursing director's reporting of wrongdoing was not covered by the Minnesota Statute because the whistleblowing law "does not grant protection to an employee whose job duties require him or her to ensure legal compliance." Another claim, based on her denying a prospective patient admission to the facility, also was not actionable because there was no evidence that the claimant "disobeyed any employer order" under Minn. Stat. § 181.932, subd. 1(c).

A prison worker who was reassigned after he confronted a supervisor regarding alleged sex harassment of a co-worker was not entitled to sue for retaliation under Title VII in Culton v. Missouri Department of Corrections, 2008 WL 323220 (8th Cir. Feb. 7, 2008). The trial court granted summary judgment, and the Eighth Circuit affirmed.

Because there was no "motive" for retaliation, the claim must be evaluated under the McDonnell Douglas burden-shifting approach. The claim failed under that standard because it was "lacking proof of causation." The decision to reassign the employee was made before his supervisor learned that he had engaged in any "activity that is protected under Title VII." The claim, that the employee was subjected to "interested scrutiny" after making his complaint, was not viable because it did not constitute "an adverse employment action" necessary for a prima facie case.

Another prison employee's retaliation claim failed in Brannum v. Dept. of Corrections, 2008 WL 1553214 (8th Cir. March 3, 2008). A woman corrections officer sued for Title VII retaliation following her re-assignment to a new position after she assisted a fellow male employee in reporting a remark by her supervisor that women do not need training because they are more "patient and nurturing" than men. The Trial Court granted summary judgment and the Appellate Court affirmed.

The claim was not actionable on grounds of an absence of a prima facie case of retaliation. The claimant did not engage in "protected activity" because the remark could not "reasonably" be regarded as sexual harassment.

Further, the reassignment was the type of "minor" change in working conditions, while an inconvenience, does not constitute adverse action to trigger a retaliation claim.

But an African-American teacher was allowed to pursue a retaliation claim in King v. Hardesty, 2008 WL 539238 (8th Cir. Feb. 29, 2008). Reversing summary judgment, the Court of Appeals held that an administrator's statement to her that "white people teach black kids" better than African-American teachers constitutes direct evidence of race discrimination.

While the school offered a number of purported reasons for limiting the teacher's work opportunities after she complained about the remark, the Trial Court's failure to address her retaliation claim warranted remand because the retaliation charge was dismissed without any "mention of the [retaliation] claim anywhere in [the school district's] motion for summary judgment."

Statistical Steam

Statistics show that retaliation claims are gaining steam along with other discrimination charges in the work places.

The Equal Employment Opportunity Commission (EEOC), which oversees claims of Federal discrimination laws, saw a 25 percent increase in retaliation claims in a decade, from about 18,000 in 1996 to more than 22,500 10 years later. In the last year alone, retaliation claims rose 18 percent to more than 26,600, comprising 32 percent of some 82,000 EEOC claims, the second highest category next to race discrimination.

But as these three cases reflect, employees are likely to be steamed-up when they receive the rulings in their retaliation cases.