Retaliation claims on the rise

In 2013, retaliation claims made up 41 percent of the discrimination complaints filed with the U.S. Equal Employment Opportunity Commission (EEOC). Retaliation claims are on the rise while other types of discrimination claims have leveled off or even dropped.

Retaliation occurs when an employee complains about workplace discrimination and is then targeted for harsher treatment by the employer. Harsher treatment includes, but are not limited to, refusal to hire, demotion, refusal to promote, harassment, negative performance evaluations, reprimands, termination or a change in hours.  The most frequent form of retaliation is disciplinary action or termination.

For example, an employee has performed at a satisfactory level or higher for quite some time.  The employee complains to the employer about workplace discrimination, for instance, sexual harassment.  Shortly thereafter, the employee is written-up, given unsatisfactory job performance evaluations, or terminated.

A retaliation claim is a separate claim from the underlying discrimination claim.  In a lawsuit, a plaintiff can win a retaliation claim while losing the underlying discrimination claim.  In general, retaliation claims are easier to prove than discrimination claims.

The Supreme Court expanded the scope of retaliation in Burlington N. & Santa Fe Rwy. Co. v. White, 548 U.S. 53 (2006) (“a plaintiff must show that a reasonable employee would have found the challenged action materially adverse, which in this context means it well might have ‘dissuaded a reasonable worker from making or supporting a charge of discrimination.’”)

To establish a prima facie claim for retaliation, a plaintiff must show:

  1. they engaged in protected activity;
  2. the defendant took action that would be “materially adverse to a reasonable employee or job applicant”; and,
  3. there is a causal connection between the protected activity and the asserted adverse action.

Materially adverse means harmful enough to “dissuade a reasonable worker from making or supporting a charge of discrimination.”  Burlington, 548 U.S. 68.

 

Bryan A. Chapman, Esquire

www.baclaw.com

 

Published in: on October 2, 2014 at 6:51 am  Leave a Comment  
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Washington Post: Maryland principal accused of bullying members of her staff

Maryland principal accused of bullying members of her staff

By Ovetta Wiggins September 12 at 7:43 PM 

When a Prince George’s County high school launched an anti-bullying campaign four years ago, students pledged to support anyone being harassed, to report instances of bullying and to treat others with respect.

But former Largo High School employees allege that while the students were learning how to create a friendly environment, one of the worst bullies was the school’s principal.

In interviews and in legal actions filed against Principal Angelique Simpson-Marcus, the former employees said that Simpson-Marcus routinely belittled and berated staff, derided teachers and secretaries and made inappropriate comments about white teachers. Simpson-Marcus, who is black, continues to run the 1,100-student school in Upper Marlboro.

The Board of Education defends Simpson-Marcus as an effective school leader, a school system spokeswoman said.

The alleged ill treatment at the school has resulted in multiple lawsuits against the Prince George’s school system. One discrimination case was decided last month when a U.S. District Court jury awarded a former English teacher $350,000. Another lawsuit is slated to begin Tuesday and a third is pending.

Several black teachers said they were told by Simpson-Marcus not to associate with the white teacher, Jon Everhart. When they did, they said, they also became targets.

“She was pushing for the kids to be kind to one another and I just thought, ‘How could you say that?’ and, ‘You are a bully?” said Venida Marshall, a former English teacher who is black and is one of 10 employees who made allegations of harassment in a 2010 lawsuit against the school system. She refused to adhere to Simpson-Marcus’s order not to have lunch with Everhart. “I thought it was a travesty,” she said.

A judge instructed plaintiffs in the joint 2010 lawsuit to file separate cases, said Bryan Chapman, Everhart’s attorney, who filed the joint lawsuit. Many of those cases were dismissed because employees did not file timely Equal Employment Opportunity complaints or because their complains were not based on discrimination; two of the remaining cases are scheduled for trial.

Simpson-Marcus declined this week to comment on the allegations, referring questions to Keesha Bullock, a school system spokeswoman. Bullock said the Board of Education has filed a motion to set aside the verdict in Everhart’s case.

In court papers, the school system calls Everhart a “failure as a teacher,” explaining that he was fired for a “legitimate non-retaliatory reason.”

“We believe the allegations against Ms. Simpson-Marcus are false, and to that end the Board of Education is vigorously defending against them in court,” Bullock wrote in an e-mail. “Ms. Simpson-Marcus has made great contributions to Largo High School and the education community in the D.C.-area for almost 10 years. Some of the best successes at Largo High School occurred under her leadership.”

Later this month, the school system heads back to court to defend against the 2010 allegations, which also focus on claims that the Largo High principal harassed staff members.

Several former employees said they were upset to learn that the principal remains at the school despite the jury’s findings in Everhart’s case. Simpson-Marcus started her seventh year as principal when school opened for classes two weeks ago.

Tracy Allison, a secretary who worked in Simpson-Marcus’s office, said she was harassed because she showed respect to Everhart, who the principal allegedly called “poor white trash,” and to another white teacher who Simpson-Marcus referred to as “Bozo.”

According to Allison’s lawsuit — which is scheduled to be heard beginning Tuesday — Simpson-Marcus retaliated against her by calling her “chicken head, bird, hood rat and ghetto.”

After Allison complained to Simpson-Marcus’s supervisor, the harassment continued, causing Allison stress and panic attacks, according to the lawsuit. She transferred to another school in August 2010.

In his lawsuit, Everhart alleged that Simpson-Marcus, who was working as a physical education teacher at the school in 2003, told students that “the only reason a white man teaches in PG County is that they can’t get a job elsewhere.”

He filed a discrimination claim against Simpson-Marcus to the teachers’ union. He said she then targeted him, telling him if she ever became principal, he would be the first person she would fire. When she returned to the school in 2007 as the principal, Everhart said Simpson-Marcus told his students and their parents that he “was a bad teacher . . . poor white trash . . . and would be fired,” according to his lawsuit.

Before Simpson-Marcus became principal, Everhart received stellar evaluations, according to his lawsuit. After she took over, his performance evaluations were unsatisfactory.

The jury ruled in Everhart’s favor on the discrimination claim but it sided with the county school board on Everhart’s claim of a hostile work environment. Everhart’s attorney has requested a partial new trial regarding the finding on the hostile work environment claim.

Simpson-Marcus said in a previous interview that the allegations are baseless. She declined to comment on the reason for Everhart’s termination, but said the complaints of ill treatment and retaliation were “unfounded.”

“I never said any of those things,” Simpson-Marcus said in an interview after the court decision in August. “I don’t use that kind of language.”

Some of Everhart’s former colleagues said Simpson-Marcus transferred Everhart to an unruly ninth-grade class and told the students that if he failed them their grades would be changed.

Bullock said she could not comment on specific allegations made against the principal because “our policy is to not comment on any ongoing or pending litigation.”

Vallie Dean, a former business education teacher, said the principal liked to embarrass Everhart.

“She would get on the [school-wide public address] system and say, ‘Mr. Everhart, report to Principal Simpson-Marcus’s office,’ ” Dean said. She said students in her class would laugh and talk about how Everhart, who was once named the school’s Teacher of the Year, was going to be fired.

Dean said she and others complained to supervisors but they received no help.

“She would say, ‘I’m the principal of Largo High School,’ ” Dean said. “It was like she had carte blanche to do whatever she wanted to whoever she wanted without any consequences.”

Meanwhile, those who came to Everhart’s defense said they were ostracized.

“I was just sad,” Marshall said. “People wouldn’t sit next to me. I had to wind up accepting my colleagues didn’t want to be targets, too.”

What is “materially adverse” when establishing a retaliation claim?

Three elements of a prima facie retaliation case.

The Supreme Court expanded the scope of retaliation in Burlington N. & Santa Fe Rwy. Co. v. White, 548 U.S. 53 (2006).  To establish a claim for retaliation, a plaintiff must show:

1)         they engaged in protected activity;

2)         the defendant took action that would be “materially adverse to a reasonable employee or job applicant”; and,

3)         there is a causal connection between the protected activity and the asserted adverse action.

What does “materially adverse” mean?

Materially adverse means harmful enough to “dissuade a reasonable worker from making or supporting a charge of discrimination.”  Burlington, 548 U.S. 68.

Suspending supervisory responsibilities or significantly reducing responsibilities.

A suspension, demotion, or termination can be materially adverse.  However, taking away an employee’s supervisor duties or significantly reducing their responsibilities can also be materially adverse for the purpose of establishing a retaliation claim. Czekalski v. Peters, 475 F.3d 360, 364 (D.C.Cir.2007) (“[W]ithdrawing an employee’s supervisory duties … constitutes an adverse employment action.” (quoting Stewart, 352 F.3d at 426) (internal quotation marks omitted)); id. at 365 (observing that “reassignment… with significantly diminished responsibilities” would constitute an adverse employment action); Kessler v. Westchester County Dep’t of Soc. Serv., 461 F.3d 199 (2d Cir. 2006); Davis v. City of Sioux City, 115 F.3d 1365 (8th .Cir. 1997)

Reprimand or negative job performance evaluation.

A reprimand or negative job performance evaluation can be materially adverse. Nye v. Roberts, No. 03-1683, (4th Cir. 2005) (unpublished) (In this case, however, the evidence is such that a reasonable jury could find that, in the context of the Board’s system of progressive discipline, the reprimand and performance evaluation resulted in a material change in Nye’s employment status.); Kim v. Nash Finch Co., 123 F.3d 1046 (8th Cir. 1997) (“…he received much lower performance evaluations than he had received before filing his employment discrimination charge…  There was also evidence that Nash Finch had ‘papered’ his personnel file with negative reports, including two written reprimands.”)

Pursuing false criminal charges.

Pursuing false criminal charges against an employee can be materially adverse. Burlington N. & Santa Fe Rwy. Co. v. White, 548 U.S. 53 (2006) (“An employer can effectively retaliate against an employee…Berry v. Stevinson Chevrolet, 74 F. 3d 980, 984, 986 (CA10 1996) (finding actionable retaliation where employer filed false criminal charges against former employee who complained about discrimination).”; Berry v. Stevinson Chevrolet, 74 F.3d 980 (10th Cir. 1996) (“Other courts concluding that Title VII extends to former employees have held that the filing of charges can constitute the requisite adverse action.”); Beckham v. Grand Affair of NC, Inc., 671 F.Supp. 415 (W.D.N.C. 1987)

Creating or perpetuating a hostile work environment.

Retaliatory harassment can constitute an adverse employment action. Von Gunten v. Maryland, 243 F.3d 858, 865 (4th Cir. 2001); Noviello v. City of Boston, 398 F.3d 76 (1st Cir. 2005) (“The weight of authority supports the view that, under Title VII, the creation and perpetuation of a hostile work environment can comprise a retaliatory adverse employment action under 42 U.S.C. § 2000e-3(a).  See, e.g., Von Gunten v. Maryland…”).

 

Bryan A. Chapman, Esquire

www.baclaw.com

 

The Gazette: Jury awards $350,000 in compensatory damages

Teacher fired in Prince George’s school system wins lawsuit alleging retaliation

Jury awards $350,000 in compensatory damages

A former Largo High School English teacher was awarded $350,000 compensatory damages by U.S. District Court in a lawsuit against the Prince George’s County school system for retaliation.

According to court documents, Jon Everhart, who is white, attempted to file a race discrimination grievance with the county teacher’s union after the principal, who is black, allegedly used several racial epithets against Everhart in the presence of students, teachers, staff and parents.

The principal did not return multiple phone or email messages to request comment for this story.

Everhart’s suit alleges the principal promised to fire him in “payback” for black teachers fired by white principals.

PGCPS spokesman Max Pugh said neither the school system nor its attorney could comment on the case, due to further litigation pending in district court.

Everhart filed multiple complaints, but the school system did not respond to his accusations, said Bryan Chapman, Everhart’s attorney.

Following the complaints by Everhart and others in 2008, Everhart began receiving unsatisfactory performance reviews, according to Chapman, who said that Everhart had previously been named Largo’s 2005-2006 Teacher of the Year.

After two years of unsatisfactory performance reviews, his employment was terminated August 2010 and his teaching credentials revoked, according to documents filed with the court on behalf of Everhart.

In addition to the $350,000 in damages, Everhart, 65, will also be awarded back pay and retirement benefits, the exact amounts of which have yet to be determined, Chapman said

“This has been a huge relief for Mr. Everhart, because now he can get back to having a normal life,” Chapman said, adding that his client, who now lives in Westerville, Ohio, has been unemployed and has suffered health problems, such as high blood pressure, because of the alleged retaliation.

“Any human being harassed like that is going to get ill,” Chapman said.

The jury found in favor of the school system in Everhart’s claim of hostile work environment, but Chapman said he has filed for a retrial on that charge, adding that the judge did not give the jury mixed motive instructions, which would apply in cases of alleged racial harassment.

Washington Post: White teacher wins $350,000 in Prince George’s schools bia lawsuit.

August 8 at 4:33 PM 

A former Prince George’s County teacher won a $350,000 jury award after accusing the school system of discriminating against him because he is white.

Jon Everhart alleged in his lawsuit against the Prince George’s County school board that a black principal forced him out of his job because of his race.

“Justice was served,” Everhart said. “I do feel as though I have been vindicated.”

Everhart, 65, speaking by phone from Ohio after the verdict in the U.S. District Court for the District of Maryland, said he faced years of racial harassment from the Largo High School principal, who he said repeatedly told staffers and students that she planned to fire him.

“She called me ‘poor white trash’ and ‘white b—-,’ ” Everhart said of the principal, Angelique Simpson-Marcus, who leads the 1,100-student school in Upper Marlboro. “Her behavior was so outlandish.”

Simpson-Marcus said in an interview that the allegations are baseless. She declined to comment on the reason for Everhart’s termination, but she said the complaints of ill treatment and retaliation were “unfounded.”

“I never said any of those things,” she said. “I don’t use that kind of language.”

Max Pugh, a spokesman for the Prince George’s County school system, said he could not comment on the case because the litigation is ongoing; the school system has 30 days to respond to the judge’s order and could file an appeal.

Everhart sued in 2010 after he was fired, and he was one of several Largo High School employees who made allegations of harassment. Some who filed lawsuits said they were mistreated for vocally supporting Everhart.

Bryan Chapman, Everhart’s attorney, argued that the Board of Education violated the Civil Rights Act, which says organizations receiving federal funding cannot discriminate on the basis of race, color or national origin. There is no cap in potential damages in such cases; Everhart originally sought $5 million.

The jury sided with Everhart on the discrimination claim, but it found in favor of the county school board on Everhart’s claim of a hostile work environment.

Everhart’s award is for compensatory damages. He said he has suffered from high blood pressure and heart problems as a result of his treatment at Largo.

U.S. District Judge Peter J. Messitte will later decide how much Everhart should receive in back pay and benefits. The school system has 30 days to show why Everhart should not receive retirement and health benefits and why his teaching certificate, which was revoked when he was fired, should not be restored.

Everhart, a former Baltimore city teacher, was hired by Prince George’s in 2003 and was assigned to teach English at Largo. At that time, Simpson-Marcus was a physical education teacher.

Everhart said Simpson-Marcus told students that the “only reason a white teacher teaches in P. G. County is that they can’t get a job elsewhere.” He filed a union grievance against her and said she told him that if she ever became principal, he would be the first person she would fire.

Chapman said that when Simpson-Marcus returned to Largo as its principal, Everhart, who was once named the school’s Teacher of the Year and who received stellar evaluations, started to receive unsatisfactory performance evaluations.

Everhart said he was removed from teaching honors English to juniors and seniors — classes in which he was popular — and was placed in a freshman class, where Simpson-Marcus allegedly told students that Everhart was going to lose his job.

Chapman said that Everhart filed complaints but that they were often ignored. He tried to get transferred to another high school, but the effort was blocked, Chapman said. There was never a school system investigation of the matter, Chapman and Everhart said.

“I just think it was a disgrace, and I think that’s what the jury saw, too,” Chapman said.

 

 

 

The Sentinel: Board of Education loses

Board of Education loses

  • 30 Jul 2014
  • Written by  Kelsey Sutton

 

GREENBELT — A federal court ordered the Prince George’s County Board of Education to pay a former Largo High School teacher $350,000 in damages for firing the teacher as retaliation for a discrimination complaint, but the teacher’s attorney said the case may not be over yet.

“I am delighted,” said Bryan Chapman, attorney for plaintiff Jon Everhart, a former Largo High School literature teacher. “[The decision] gave Jon Everhart some relief after four years.”

Everhart, a former teacher of the year, filed a lawsuit after the school system fired him in Aug. 2010.

Everhart claims Largo High School Principal Angelique Simpson-Marcus made racially-fueled discriminatory remarks toward him, and when he filed complaints with the Prince George’s County Educators’ Association and the Board of Education, the school system fired him in retaliation.

Everhart claims he first became aware of discriminatory remarks from Simpson-Marcus in 2003, when a student notified him. The student told Everhart that Simpson-Marcus, a gym teacher at the time, told her class, “The only reason a white man teaches in P.G. County is that they can’t get a job elsewhere.”

After he filed his grievance, Everhart claims Simpson-Marcus told him if she became principal he would be the first person she would fire. After Simpson-Marcus became principal in 2007, Everhart claims she called him “poor white trash” and other derogatory terms in front of students, parents, teachers and staff. Everhart also claims he received negative evaluations after Simpson-Marcus became principal.

The federal jury found Everhart’s firing was illegal under Title VI of the Civil Rights Act of 1964, which protects employees from being fired from federally funded schools as retaliation for issuing complaints of racial discrimination.

The jury also ruled the Board of Education needs to pay for health and retirement benefits, as well as lost pay, which Chapman claims is in excess of $200,000, putting his total reward at more than $500,000.

The jury, however, contrary to Everhart’s claims, found he did not experience a hostile work environment during his time at Largo High School.

Chapman said he and Everhart may seek to further pursue the hostile work environment charge.

“It’s not over,” Chapman said. “There are going to be more fireworks.”

Max Pugh, a spokesman for Prince George’s County Public Schools , said he could not comment on ongoing legal matters.

Everhart said when he brought the issue of his alleged harassment to the attention of the school board they did nothing to address his complaints. Everhart then contended he was further harassed, mistreated and ultimately fired because of the complaints he filed.

But the Board’s attorney argued there was no harassment, just a disgruntled former teacher trying to make excuses for his poor classroom performance.  “This case is about an under-performing teacher who refused to take responsibility for his failures,” defense attorney Robert Baror said in closing arguments.  Baror defended Simpson-Marcus, saying she was simply doing her job and holding Everhart accountable for failing to maintain adequate student performance in his classroom.

Chapman contended low teacher evaluations were a direct result of the harassment Everhart faced and the complaints he began filing.

Everhart took the stand himself, with hundreds of documented letters he sent to his union representative regarding the harassment.  “The Board of Education ignored the harassment and the complaints in the personnel file increased,” Chapman said during closing arguments. “They’re blaming the victim.”

Throughout the trial, the case also relied on testimony from one of Everhart’s former students, former assistant principals and other school employees.

The Board of Education has 30 days to respond to the jury’s decision.

“Mixed Motive” standard eases the burden of proving discrimination

Adverse actions, such as, workplace harassment and terminations, often occur due to a blend of discriminatory and non-discriminatory motivations.

For instance, an African American employee gets into an altercation with a white employee.  The African American employee is terminated but the white employee is retained.  Both employees have comparable work records and are equally to blame for the altercation.  In this example, the race of the African American employee could be “a motivating factor” in his or her termination.

A race discrimination claim could advance under a “mixed motive” theory.  Plaintiff prevails simply by proving that his or her race was “a motivating factor.” Price Waterhouse v. Hopkins, 490 U.S. 228 (1989)

Elements of a “Mixed Motive” Theory:

  1. Plaintiff is a member of a protected group (race, sex, national origin, religion, etc.) and suffered some sort of adverse employment action.
  2. Protected status was “a motivating factor” in the decision.

“[A]n unlawful employment practice is established when the complaining party demonstrates that…[protected status (not including retaliation)] was a motivating factor for any employment practice, even though other factors also motivated [and indeed may have caused] the practice.” [Sec. 107 of the Civil Rights Act of 1991]

In Desert Palace v. Costa, 123 S. Ct. 2148 (2003), the U.S. Supreme Court concluded that plaintiffs could use direct or circumstantial evidence to make the showing necessary to merit a mixed-motive jury instruction.  “[I]t is sufficient for the [plaintiff] to demonstrate that the employer was motivated to take the adverse employment action by both permissible and forbidden reasons…” Hill v. Lockheed Martin Logistics Mgmt., Inc., 354 F.3d 277, 284-85 (4th Cir. 2004).

Bryan A. Chapman, Esquire

www.baclaw.com

 

 

 

Federal Jury Decides That Prince George’s County Public Schools Can Be Held Liable Under Title VI For Race Discrimination and Retaliation.

Jon Everhart will have his day in court.

On February 28, 2014, a federal jury, at the Greenbelt, MD federal courthouse, issued a verdict that means Prince George’s County Public Schools can be found liable under Title VI for race discrimination and retaliation.  Specifically, the jury decided that Prince George’s County Public School received federal assistance, starting in 2009, which had the primary objective of providing employment.  In 2009, PGCPS, which has a annual budget of approximately $1.7 billion, received $140 million in federal stimulus funds which it used to avert laying off hundreds of teachers and other school workers.

The verdict allows Jon Everhart’s $5 million race discrimination/retaliation lawsuit to advance to trial.  The trial is scheduled to begin on July 15, 2014.  Mr. Everhart, a white English teacher, alleges that he was racially harassed by Principal Angelique Simpson-Marcus of Largo High School, who is African American.  The standard of prove under Title VI is the same as under Title VII,  except Title VII has a cap on damages of $300,000 while Title VI has no cap on damages.

Mr. Everhart was hired by PGCPS and assigned to Largo High School in 2003.  From 2003 until 2009, Mr. Everhart was a popular teacher who taught English literature and received perfect job performance evaluations from several Largo High School principals.  In the fall of 2007, Principal Simpson-Marcus became the principal of Largo High School.  In 2009 and 2010, Principal Simpson-Marcus gave Mr. Everhart unsatisfactory job performance evaluations which resulted in his termination in June 2010.

In 2003, students informed Mr. Everhart that Ms. Simpson-Marcus, then a physical education teacher, told her gym class: “The only reason a white man teaches in PG County is that they can’t get a job elsewhere.”  Mr. Everhart filed a union grievance against Ms. Simpson-Marcus alleging racial harassment.  Shortly thereafter, Ms. Simpson-Marcus told Mr. Everhart that if she ever became principal, he would be the first person she would fire.

In the summer of 2007, Ms. Simpson-Marcus became the principal of Largo High School.  Beginning in the fall of 2007, Principal Simpson-Marcus told Mr. Everhart that she would fire him and take away his teaching certificate as “payback” for a time when white principals mistreated black teachers.  Principal Simpson-Marcus called Mr. Everhart “poor white trash” and “white bitch” to his face and made similar comments about Mr. Everhart in the presence of  his students.  Principal Simpson-Marcus told Mr. Everhart that he needed to transfer to a white suburban school, which she referred to as “Whiteville”.  Mr. Everhart observed Principal Simpson-Marcus harassing other white teachers as well.

PGCPS would not allow Mr. Everhart to transfer to another school.  In 2009, Mr. Everhart became depressed and his blood pressure rose to dangerous levels.  Mr. Everhart complained about Principal Simpson-Marcus to anyone who would listen.  Principal Simpson-Marcus retaliates against African American teachers and staff who speak up on Mr. Everhart’s behalf with threats and racial and sexual name-calling, such as, “black bitch” and “black ass”.  The jury verdict also allowed two of these African American plaintiffs to go forward with their race discrimination lawsuits against Principal Simpson-Marcus.

Mr. Everhart, and other working on his behalf, complained verbally and in writing about Principal Simpson-Marcus’s racial harassment to school board officials, including former Superintendent William Hite.  Despite these complaints, PGCPS never conducted an investigation and never took corrective action against Principal Simpson-Marcus.  During his final two years, Principal Simpson-Marcus repeatedly wrote up Mr. Everhart and gave him negative job performance evaluations which lead to his termination in June 2010.

Title VI allows relief for employment discrimination when “providing employment is a primary objective of the federal aid”.  Venkatraman v. REI Systems, Inc., 417 F.3d 418, 421 (4th Cir. 2005); Trageser v. Libbie Rehabilitation Ctr., Inc., 590 F2d 87 (4th Cir. 1978) (“…employment is a primary objective of the federal aid”).  Title VI applies even if the plaintiff is not the ultimate beneficiary of federal financial assistance, such as, a student.

34 C.F.R. § 100.3(c) Employment practices states:

§ 100.3 Discrimination prohibited. (c) Employment practices. (1) Where a primary objective of the Federal financial assistance to a program to which this regulation applies is to provide employment, a recipient may not (directly or through contractual or other arrangements) subject an individual to discrimination on the ground of race, color, or national origin in its employment practices under such program (including recruitment or recruitment advertising, employment, layoff or termination, upgrading, demotion, or transfer, rates of pay or other forms of compensation, and use of facilities)…

The American Recovery and Reinvestment Act, Public Law III-5, states in Section 3(a)(1) that the purpose of the Act  includes “To preserve and create jobs and promote economic recovery.”  The Act states the following:

SEC. 3. PURPOSES AND PRINCIPLES. (a) STATEMENT OF PURPOSES.

The purpose of this Act includes the following:

(1) To preserve and create jobs and promote economic recovery.

Bryan A. Chapman, Esquire

www.baclaw.com

Hostile Work Environment: Making a Prima Facie Case

Employment discrimination can take the form of workplace harassment.  To be actionable in federal court, the level of harassment has to be severe or pervasive enough to constitute a hostile work environment.  For instance, a workplace that is saturated with sexual jokes, slurs, or innuendo could constitute a sexually hostile work environment.  A workplace that is saturated with racial jokes, slurs, or innuendo could constitute a racially hostile work environment.

A hostile work environment can be actionable if an employer is aware of the harassment but fails to take prompt and effective corrective action.  The employee generally has a duty to complain to the employer about the harassment.

In order to establish a prima facie hostile work environment claim, a plaintiff must demonstrate that the alleged conduct:

1) was unwelcome;

2) resulted because of [race, sex, national origin, religion, etc.];

3) was “sufficiently severe or pervasive” to alter the conditions of [his or her] employment; and,

4) was imputable to [his or her] employer.

Ocheltree v. Scollon Prods., Inc., 335 F.3d 325, 338 (4th Cir. 2003).

First, a plaintiff can demonstrate that the harassment is unwelcome by complaining about it.

Second, if a female employee is the victim of sexual jokes, slurs, or innuendo from a male co-worker or supervisor, the harassment is assumed to be because of her sex.  The same can be said about harassment that targets an employee’s race, national origin, or religion.

Third, the offensive conduct must be sufficiently severe or pervasive.  Generally, the offensive conduct must be more than incidental.  For example, a few instances of racial or sexual name-calling may not be actionable.  However, a workplace where racial or sexual name-calling is a daily occurrence could be actionable. Spriggs v. Diamond Auto Glass, 242 F.3d 179 (4th Cir. 2001); Harris v. Forklift Sys., 510 U.S. 17, 22 (1993) (”A discriminatorily abusive work environment…can and often will detract from employees’ job performance…”)

Fourth, an employer can generally be found liable for a hostile work environment when the employer: 1) has knowledge of the harassment, and, 2) fails to take prompt and effective corrective action. Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998); Faragher v. City of Boca Raton, 524 U.S.775 (1998).

If you are a victim of a hostile work environment, seek the advice of an experienced attorney as soon as possible.

Bryan A. Chapman, Esquire

www.baclaw.com

 

 

Retaliation: Surviving the Employer’s Accusation of Poor Performance or Misconduct.

In a workplace, retaliation occurs when an employee complains about or opposes discrimination and is then subject to harsh treatment, such as, harassment or termination.  The harsh treatment must be a direct result of the employee’s complaint about or opposition to discrimination.  In other words, “but for” his or her complaint or opposition, the employee would not have been subject to harsh treatment.

The Supreme Court expanded the scope of retaliation in Burlington N. & Santa Fe Rwy. Co. v. White, 548 U.S. 53 (2006).  To establish a prima facie claim for retaliation, a plaintiff must show:

1)       they engaged in protected activity;

2)       the defendant took action that would be “materially adverse to a reasonable employee or job applicant”; and,

3)       there is a causal connection between the protected activity and the asserted adverse action.

Materially adverse means harmful enough to “dissuade a reasonable worker from making or supporting a charge of discrimination.”  Burlington, 548 U.S. 68.

To protect itself against a retaliation claim, an employer may accuse an employee, who has a long history of satisfactory job performance, of being a bad employee.  By accusing the employee of poor job performance or misconduct, the employer creates a non-retaliatory excuse for its retaliatory conduct.  If the employer can advance a non-retaliatory explanation for its action, the employee’s retaliation claim may not meet the “but for” standard and be subject to dismissal by an administrative agency or court.  To counter this, an employee must demonstrate that the employer’s excuse is not believable or mere pretext for retaliatory conduct.

An opportunistic employer may simply wait for an opportunity to accuse the employee of poor performance or misconduct.  However, this ploy may not always succeed. Hamilton v. General Electric, 556 F.3d 428 (6th Cir. 2009) (We have held that when an “employer . . . waits for a legal, legitimate reason to fortuitously materialize, and then uses it to cover up his true, longstanding motivations for firing the employee,” the employer’s actions constitute “the very definition of pretext.”)  An employee who complains about or opposes discrimination should not let their guard down.

Management may conspire against the employee or solicit complaints from the employee’s co-workers.  Under these circumstances, new accusations of poor performance or misconduct may seem contrived. Brady v. Office of Sergeant at Arms, 520 F.3d 490, 496 (D.C. Cir. 2008) (“[t]he question is not whether the underlying…incident occurred; rather, the issue is whether the employer honestly and reasonably believed that the underlying…incident occurred”)  An employee should document his or her experience in the workplace and identify potential witnesses.

If you believe your employer is retaliating against you, seek the advice of an experienced attorney as soon as possible.

Bryan A. Chapman, Esquire

www.baclaw.com

Published in: on January 26, 2014 at 4:52 pm  Leave a Comment  
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