The Eighth Circuit Court of Appeals recently issued two opinions allowing claims for retaliation for reporting harassment in violation of Title VII to proceed. In both cases, the court held that the employee provided direct evidence of retaliation sufficient to defeat summary judgment for the employer. These cases should serve as a reminder to employers that all claims of harassment or hostile environment should be taken seriously and properly addressed.
The first decision, Young-Lossee v. Graphic Packaging International, Inc., 631 F.3d 909 (8th Cir. 2011), is a good example of how employers should not respond to a complaint of hostile work environment and harassment. After repeated complaints to multiple managers and filing a formal complaint of harassment, a meeting was arranged with the employee, a plant supervisor and two other managers to address the employee’s concerns. At that meeting, the plant supervisor interrupted the employee and did not allow her to speak. He also crumpled up her complaint, threw it in a garbage can and said it was “total bulls**t.” The meeting ended when the supervisor pointed at the door and told the complainant that he wanted her “out of here” and that he never wanted to see her again.
The employee understood that she had been fired and did not return to work. She emailed one of the managers, noting that she was pushed out the door after filing her complaint. That manager contacted a human resources director who instructed the employee that she was not terminated and instructed her to return to work. However, the employee did not do so based upon the manager’s conduct. The human resources director said her refusal to return would be treated as a voluntary resignation. The employee did not return to work and later brought an action asserting sex discrimination, hostile work environment and retaliation in violation of Title VII.
In reversing the district court’s grant of summary judgment for the employer, the Eighth Circuit held that the employee presented direct evidence that she was terminated in retaliation for filing a formal complaint of harassment. The court described the plant supervisor’s actions in wadding up the complaint, commenting adversely on it and throwing it away while telling her to leave and that he never wanted to see her again, was direct evidence of a causal link between the filing of the complaint and the employee’s firing.
The employer argued that it had taken no adverse action against the employee because she was offered an opportunity to return to work. However, the court held that being fired for making a discrimination complaint, even if the firing was rescinded after two days, might dissuade a reasonable employee from making a complaint of harassment.
This fell within the definition of a “materially adverse action” as promulgated by the United States Supreme Court in Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006). Therefore, the district court improperly granted summary judgment for the employer and the retaliation claim should proceed.
A few months later, the Eighth Circuit considered another allegation of improper retaliation in Pye v. Nu Aire. Inc., 641 F.3d 1011 (8th Cir. 2011). In that case, an employee alleged race discrimination, hostile environment, and retaliation in violation of Title VII. He claimed that the employer’s payroll administrator repeatedly refused to properly fill out documentation he requested, that she referred to him by a racially inflammatory term, and that he received inadequate training compared to white employees. Following an investigation into the employee’s allegations, the employee, the director of human resources, and a vice president of the company had a meeting to discuss the employee’s allegations. At this meeting, the employee stated he wanted to be helped or compensated for what happened and also noted he had been requesting to move into different jobs.
Following this meeting, the human resources director emailed the vice president and said that the employee was trying to shake down the company for money and a promotion. The human resources director recommended the vice president contact an attorney to see if the company could fire the employee for making threats. The vice president declined to do so, but directed the employee’s supervisor to fire him. The employee later filed his action, and the district court granted summary judgment in favor of the employer on all counts.
The Eighth Circuit upheld the district court on the discrimination and hostile environment claims, agreeing that the racial comments did not rise to the level of actionable racial harassment and upheld the dismissal of the employee’s claims that he was treated differently for racial reasons. However, the appellate court reversed judgment for the employer on the retaliation claim. The court held that a claim of retaliation could proceed even when the underlying claim of harassment was dismissed. The court also held that the employee’s termination was a direct result of his complaint of discrimination and his suggestions of remedies. The reasons given for his termination and how close in time it occurred to his complaint and termination supported a claim for retaliation.
These cases illustrate the importance that employers not take action against employees who make allegations of harassment, regardless of the employer’s beliefs about the merits of the claim. As the Pye court held, retaliating against an employee who alleges harassment, even when the alleged actions are not actionable, is prohibited. This means that any action that could reasonably be viewed as retaliatory following a complaint of harassment should be avoided. Although an employer may be tempted to take action against employees for making what it considers to be false or bogus claims, the employer must not take any adverse action against that employee. Rather, the proper action is to treat all complaints of harassment as legitimate and investigate or handle them accordingly.
Clearly the employers in the Young-Lossee and Pye cases did not do this. Rather, managers of both companies disregarded what they perceived to be non-meritorious claims and acted consistent with these beliefs. Telling an employee that his or her allegation of harassment is “total bullsh**t,” is not a prudent course of action. This action by the manager likely caused the court to allow the retaliation claim to go forward, even though it was not clear that the employee had actually been terminated and even though the underling allegation may not have had merit.
Also in both cases, the closeness in time between the complaint and the adverse employment action was critical. A court will look for direct evidence when considering a retaliation claim, which can be shown by a short timeframe between the complaint and adverse action. Cases such as these two, where hardly any time passes between the complaint and termination, make it easy for a court to find the two actions were related. An employer must be sure to avoid taking any action against an employee who makes a complaint of harassment for a period of time such that it is clear that the action was not related to the complaint. Finally, the use of inappropriate language by managers in each of these cases emphasizes the importance that supervisors must ensure that they refrain from saying anything in response to a complaint that could be viewed as dismissive or otherwise have greater consequences down the road.