Employees may prevail against employers who use false accusations to hide severe retaliatory behavior.

Victims of workplace discrimination and/or harassment are encouraged to file a complaint with their employer or a government entity, such as, the Equal Employment Opportunity Commission (EEOC).  Filing a complaint is generally a prerequisite to pursuing a claim in state or federal courts.

However, filing a discrimination complaint can trigger a retaliatory response from the employer.  In general, retaliation is an impulsive reaction by an employer to a discrimination/harassment complaint filed by an employee.  The employer’s reaction to the employee’s complaint results in harsher treatment, which can include termination.  Like discrimination, retaliation is illegal.  Kim v. Nash Finch Co., 123 F.3d 1046 (8th Cir. 1997) (“There was also evidence that Nash Finch had ‘papered’ his personnel file with negative reports…”); Gowski v. Peake, 682 F.3d 1299 (11th Cir. 2012) (The evidence here showed that the administration intended to retaliate against Gowski and Zachariah because of their EEO activity and then created a hostile environment by spreading rumors about the doctors, damaging their reputations, and disciplining them.)

While retaliation is generally impulsive, some employers are more calculating in the way they retaliation against employees. These employers use pretext (false justification) to hide their true retaliatory motive.

Like a spider and its web, these employers wait for the employee to make a minor mistake and then they use the employee’s minor mistake to falsely justify a severe retaliatory response, such as, a termination.  Hamilton v. General Electric Co., 556 F.3d 428, 435 (6th Cir. 2009) (“…Hamilton alleges that the bosses heightened their scrutiny of him after he filed his EEOC complaint. See Jones v. Potter, 488 F.3d 397, 408 (6th Cir. 2007) (noting that an employer cannot conceal an unlawful discharge by closely observing an employee and waiting for an ostensibly legal basis for discharge to emerge).”); EEOC v. Boeing Co., 577 F. 3d 1044, 1050-3 (9th Cir. 2009) (“…after Boeing substantiated a sexual harassment claim Wrede had filed, she received lower RIF scores than most engineers in her skill code and was subsequently terminated.[1] These scores were lower than the scores she had received in two previous RIF evaluations in April and July of 2002.”)

In court, most employers use pretext as a standard defense against an employee’s claim of retaliation.  An employee with a record of satisfactory job performance will suddenly be accused, by their employer, of poor job performance or serious misconduct.  Often, this defense ploy lacks credibility on its face.

Courts recognize that employers use pretext to hide their true retaliatory motive.  With this in mind, employees may prevail in court by proving that their employer’s justification is false and retaliatory.  An employee’s record of satisfactory job performance or good conduct often speaks for itself.  (“[A] plaintiff’s prima facie case, combined with sufficient evidence to find that the employer’s asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated.”).  Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000); Merritt v. Old Dominion Freight Line, Inc., 601 F.3d 289, 295 (4th Cir. 2010); Mereish v. Walker, 359 F.3d 330, 336 (4th Cir. 2004)

 

 

Bryan A. Chapman, Esquire

www.baclaw.com

bchapman@baclaw.com

202 508-1499

 

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Employers con sexual harassment victims by means of a “see no evil, hear no evil” policy.

Particularly, in the case of co-worker sexual harassment, an employer can only be found liable for sexual harassment if management is aware that sexual harassment is occurring in the workplace.  As a result, some employers have adopted a “see no evil, hear no evil” strategy.

Management may be fully aware that sexual harassment is occurring, but deliberately pretend that is is not occurring in order to avoid liability.  Management may even discourage victims of sexual harassment from complaining.  Spicer v. Com. of Va., Dept. of Corrections, 66 F. 3d 705, 710 (4th Cir. 1995) (We reiterated this requirement in Swentek, holding that an employer is liable only “where it had `actual or constructive knowledge of the existence of a sexually hostile work environment and took no prompt and adequate remedial action.'” 830 F.2d at 558 (quoting Katz) (emphasis added).  Knowledge of work place misconduct may be imputed to an employer by circumstantial evidence if the conduct is shown to be sufficiently pervasive or repetitive so that a reasonable employer, intent on complying with Title VII, would be aware of the conduct.); Jackson v. Quanex Corp., 191 F. 3d 647, 664 (6th Cir. 1999)

“An employer cannot avoid Title VII liability for coworker harassment by adopting a “see no evil, hear no evil” strategy.” Ocheltree v. Scollon Productions, Inc., 335 F. 3d 325, 334 (4th Cir. 2003)  “Once the employer has notice, then it must respond with remedial action reasonably calculated to end the harassment.” EEOC v. Sunbelt Rentals, Inc., 521 F.3d 306, 319 (4th Cir. 2008)

Therefore, victims of workplace sexual harassment should document each incident of harassment in real time.  Documentation can be evidence of sexual harassment if a lawsuit is filed.  Victims of workplace sexual harassment should seek corroboration from other victims of sexual harassment; there is strength in numbers.  Finally, victims of workplace sexual harassment must complaint to management and/or government entities, such as, the Equal Employment Opportunity Commission (EEOC).

 

Bryan A. Chapman, Esquire

www.baclaw.com

bchapman@baclaw.com

202 508-1499

Major Areas of Protection Under Federal Anti-discrimination Laws

LAW OFFICE OF BRYAN A. CHAPMAN

Employment Discrimination Attorney

202 508-1499

bchapman@baclaw.com

www.baclaw.com

sexual harassment    sex discrimination

race discrimination    national origin discrimination

religious discrimination    age discrimination

disability discrimination    retaliation

  • Sex Discrimination
    Federal laws prohibit discrimination based on sex with respect to all terms and conditions of their employment, including but not limited to: hiring, compensation, promotion, treatment on the job, termination.
  • Race Discrimination
    Federal laws protect employees from being treated less favorably, receiving fewer job or promotional opportunities, termination and more—including allowing an employee to be subjected to severe or pervasive harassment—based on race.
  • National Origin Discrimination
    Federal laws protect employees from being treated less favorably, receiving fewer job or promotional opportunities, termination and more—including allowing an employee to be subjected to severe or pervasive harassment—based on national origin.
  • Disability Discrimination
    Federal laws prohibit discrimination on the basis of disability in all employment practices. An employer may not discriminate against a qualified individual with a disability because of that employee’s disability, nor may the employer deny the employee a reasonable workplace accommodation that would allow the employee to perform his or her job.
  • Religious Discrimination
    Federal laws prohibit employers from discriminating against employees on the basis of their religion. This discrimination may come in the form of adverse employment actions, but may also include harassment based on an employee’s religion. Employers are also required to provide reasonable accommodations for their employees’ religious practices and beliefs unless the employer can demonstrate that such an accommodation would cause them an “undue hardship.”
  • Age Discrimination
    Federal laws prohibit the mistreatment of workers age 40 and over because of their age. This includes all aspects of employment including hiring, promotions, training, salary, job assignments and termination. Workplace age discrimination also includes harassment based on age that creates a hostile or offensive work environment.
  • Retaliation
    Federal laws protect employees who oppose discriminatory conditions at work and face retaliation for their actions.  Unlawful retaliation can include refusal to hire, demotion, tranfer to undesirable job duties, or termination of the employee who has filed a charge of discrimination with the employer or with the Equal Employment Opportunity Commission (EEOC), or has participated in the investigation of discrimination.

Federal Laws

  • Title VII of the Civil Rights Act of 1964 – prohibits workplace discrimination based on an employee’s race, sex, national origin, or religion.

 

  • The Americans with Disabilities Act (ADA) – prohibits workplace discrimination based on an employee’s disability.

 

  • The Age Discrimination is Employment Act (ADEA) – prohibits workplace discrimination based on an employee’s age.

 

Legal Remedies

  • Back pay for lost wages
  • Front pay for future lost wages
  • Compensatory damages
  • Punitive damages
  • Litigation costs and attorney fees

 

 

Bryan A. Chapman, Esquire

www.baclaw.com

bchapman@baclaw.com

202 508-1499

 

Fourth Circuit Court of Appeals Affirms Judgment Against Prince George’s County School Board

LAW OFFICE OF BRYAN A. CHAPMAN

Employment Discrimination Attorney

bchapman@baclaw.com

202 508-1499

www.baclaw.com

On September 16, 2016, the Fourth Circuit Court of Appeals, located in Richmond, Virginia, affirmed the district court’s final order of judgment in Jon Everhart v. Board of Education of Prince George’s County, 11-cv-01196-PJM.

The Court stated:

“Based on the foregoing, we affirm the district court’s final order of judgment.  We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process ”

On March 15, 2016, U.S. District Court Judge Peter J. Messitte entered judgment in favor of Jon Everhart, a former English teacher, and against the Board of Education of Prince George’s County.

In July 2014, a federal jury decided that the Board retaliated against Mr. Everhart after he complained about race discrimination.  Mr. Everhart, who is white, claimed that Principal Angelique Simpson-Marcus, who is African American, harassed him because he is white. Mr. Everhart was terminated after he complained to Board officials about Principal Simpson-Marcus.

Mr. Everhart will receive a jury award of $350,000.00 in compensatory damages.  Mr. Everhart will also receive $198,170.00 in back pay.  Mr. Everhart’s total cash award is $548,170.00.

In addition to the cash award, Judge Messitte ordered the following:

  1. The Board of Education of Prince George’s County will provide Mr. Everhart with retiree health benefits;
  2. The Board of Education of Prince George’s County will increase the amount of Mr. Everhart’s pension by including the years 2010-2016;
  3. The Board of Education of Prince George’s County will expunge certain negative employment records from Mr. Everhart’s personnel file and related files; and,
  4. The Board of Education of Prince George’s County will pay Mr. Everhart’s attorney’s fees separately.

In total, the judgment against the Board of Education of Prince George’s County exceeds $1,148,170.00.

 

Bryan A. Chapman, Esquire

www.baclaw.com

bchapman@baclaw.com

202 508-1499

 

 

 

Cat’s Paw Theory: “Boss set me up!”

The Cat’s Paw theory that applies to some discrimination and retaliation cases.  If an employee’s supervisor, who is both biased and untruthful, convinces the employer to take an adverse action (i.e. termination, demotion, denial of promotion, suspension, etc.) against the employee, the employer could be found liable for discrimination or retaliation under the Cat’s Paw theory.  Staub v. Proctor Hospital, 131 S. Ct. 1186 (2011)

In March 2011, the U.S. Supreme Court, in Staub v. Proctor Hospital, 131 S. Ct. 1186 (2011), defined an employer’s liability under the Cat’s Paw theory:

  1. a non-decision maker, who is the employee’s supervisor, is motivated by discriminatory (or retaliatory) intent;
  2. the biased non-decision maker performs an act intended to cause the employee to suffer an adverse employment action; and,
  3. the biased non-decision maker’s act is a proximate cause of the adverse action.

The term Cat’s Paw comes from a French fable.  A monkey and a cat are sitting in front of a fire.  Chestnuts are roasting in the fire and the monkey wants a chestnut.  So, the monkey convinces the cat to fetch a chestnut out of the fire.  The cat fetches a chestnut but burns his paw in the process.  Meanwhile, the monkey eats the chestnut.

An employer can be found liable for discrimination or retaliation, even if the decision maker is not biased.  Liability can be established if the decision maker relies on a non-decision maker who is biased and untruthful.

Bryan A. Chapman, Esquire

www.baclaw.com

“See no evil, hear no evil” anti-harassment policies can be challenged in court.

“See no evil, hear no evil” anti-harassment policies can be successfully challenged.

In order to escape liability, federal law strongly recommends that employers adopt an anti-harassment policy.  For instance, an anti-sexual harassment policy prohibits sexual harassment in the workplace.

Having an anti-harassment policy suggests that the employer is taking affirmative measures to prevent harassment in its workplace.  However, there are workplaces where a routine anti-harassment policy is simply ineffective.

Many organizations, such as school districts, have a central administrative office and many separate facilities spread over a wide area. The anti-harassment policy instructs employees to submit their complaints to the central administrative office.

However, employees, who are not located at the central administrative office but at a distant separate facility, are unable to visit the central administrative office during business hours.  Furthermore, the central administrative office is usually closed in the evening and over the weekend.

As a practical matter, the central administrative office is not accessible to all employees who wish to file harassment complaints in person.  This fact can discourage employees who wish to file harassment complaints, which makes the anti-harassment policy ineffective.

In addition, anti-harassment policies generally do not require managers, who are located at the separate facilities, to report incidents of harassment to the central administrative office.  These managers are generally not trained to report incidents of harassment, that they learn about through informal channels, to the central administrative offices.  As a result, anti-harassment policies and procedures are dysfunctional, which allows incidents of harassment to go unreported.

An employers should not be able to shield themselves from liability and damages in court by means of ineffective and dysfunctional anti-harassment policy.  Courts have found some anti-harassment policies defective:

1) when management level employees who have knowledge of an incident of sexual harassment are not required to report that information to those who are in a position to take appropriate action. Varner v. Nat’l Super Markets, Inc., 94 F.3d 1209, 1214 (8th Cir. 1996) (“a procedure that does not require a supervisor who has knowledge of an incident of sexual harassment to report that information to those who are in a position to take appropriate action falls short of that which might absolve an employer of liability”); and,

2) when the facility where the harassment occurs is in a different location from the facility where the employee is expected to submit his or her harassment complaint.  Wilson v. Tulsa Junior College, 164 F. 3d 534, 541 (10th 1998) (finding a policy deficient in part because employees were directed to make complaints to an official who was “located in a separate facility” and inaccessible during some work hours).

Bryan A. Chapman, Esquire

www.baclaw.com

Published in: on October 4, 2015 at 2:41 am  Leave a Comment  
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Retaliation For Whistleblowing: Public Employees Have First Amendment Protections – 42 U.S. Code § 1983 (Municipal Liability)

42 U.S. Code § 1983 (Freedom of Speech – First Amendment) – Municipal Liability

Municipal employees are protected against retaliation for speaking up about government wrongdoing.  To establish a prima facie case of retaliation under 42 U.S.C. § 1983, a plaintiff must show “(1) that they engaged in a protected activity; (2) that the employer took an adverse employment action against them; (3) that a causal connection existed between the protected activity and the asserted adverse action.”  King v. Rumsfeld, 328 F.3d 145, 150-51 (4th Cir. 2003)

Under the First Amendment, a public employee has a qualified right to speak on matters of public concern.

  1. A public employee has to be speaking as a citizen and not as part of his or her official duties.
  2. A public employee’s speech must be on a matter of public concern.
  3. In order to establish municipal liability, a public employee’s speech must result in an adverse employment action (harassment, denial of promotion, demotion, deprivation of benefits, suspension, termination, etc.).

Public employees have First Amendment protections.  Pickering v. Board of Education, 391 U.S. 563 (1968)

“Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress…”  42 U.S.C. § 1983

Bryan A. Chapman, Esquire

www.baclaw.com

 

 

NBC Local News: Dr. Angelique Simpson-Marcus, Principal Accused of Bullying, Out at Largo High

Dr. Angelique Simpson-Marcus, Principal Accused of Bullying, Out at Largo High

NBCWashington.com
Dr. Angelique Simpson-Marcus

Dr. Angelique Simpson-Marcus has left as principal of Largo High School, the school district confirms.

School officials would not comment on the terms of her departure.

In the past, News4 has reported Simpson-Marcus has had a history of bullying and heavy-handedness toward her co-workers.

Prince George’s County Board of Education settled two lawsuits against Simpson-Marcus in the past year. One white male teacher filed a case alleging reverse discrimination and won more than $500,000 in August, while a school secretary reached an undisclosed settlement with the school system the following month.

In October, Simpson-Marcus also threatened to forfeit the school varsity football team’s season if it didn’t start winning, according to one school parent.

Prince George’s County Council Member Mary Lehman had called for Simpson-Marcus’ removal in a letter to Schools Chief Kevin Maxwell sent in September.

The local NAACP said they received several complaints about Simpson-Marcus.

“A counselor at Largo High School came to our office complaining about harassment, hostile work environment,” said Bob Ross of the Prince George’s County NAACP.

Simpson-Marcus had been principal of Largo High School since 2007.

Heightened Scrutiny: Employers ensnare unsuspecting employees

 Heightened Scrutiny: Employers ensnare unsuspecting employees.

 Retaliation occurs when an employee complains about workplace discrimination and is then targeted for harsher treatment by their 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.

An employee may complain that retaliation occurred when the employer “papered” their personnel file with write-ups and negative evaluations after they complained about workplace discrimination.  In its defense, the employer may argue that retaliation did not occur because the write-ups and negative evaluations were based on the employee’s poor job performance or misconduct.

Even if the write-ups and negative evaluations were based on the employee’s poor job performance or misconduct, retaliation can still occur if the derogatory documentation was a result of “heightened scrutiny”.  Under heightened scrutiny, the employer observes the employee more closely than it otherwise would while waiting for opportunities to discipline the employee. 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.”)

 

Bryan A. Chapman, Esquire

www.baclaw.com

 

“Papering” an employee’s personnel file: Dr. Jekyll becomes Mr. Hyde

“Papering” an employee’s personnel file: Dr. Jekyll becomes Mr. Hyde

 Employers are advised to document the job performance of their employees. The documentation of job performance is particularly important when an employer is accusing an employee of poor job performance.  Write-ups and negative job performance evaluations can justify adverse actions, such as, denial of promotion, demotion, or termination.

However, unjustified write-ups and negative job performance evaluations may be evidence of discrimination and retaliation.  A careful examination of the personnel file portrays an employee who goes from being Dr. Jekyll to Mr. Hyde: a good employee suddenly becomes a bad employee.  This can raise suspicion and expose an employer to liability.

“Papering” occurs when an employer deliberately packs an employee’s personnel file with unjustified write-ups and negative job performance evaluations in order to justify an adverse action.  For instance, an employer can “paper” an employee’s personnel file by the following methods:

  • An employer may hold the employee to a higher standard than “similarly situated employees”.
  • An employer may scrutinize an employee.
  • An employer may singled out the employee for criticism or disciplinary action.
  • An employer may create a hostile work environment that interferes with the employee’s ability to perform their job.
  • An employer may solicit criticism of the employee from their co-workers and supervisors.
  • An employer may incite the employee’s co-workers and supervisors against them.
  • An employer may deliberately give the employee false write-ups and negative job performance evaluations.

Employers can use “papering” to cover-up discrimination and retaliation. 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.”); Etefia v. East Baltimore Cmty. Corp., 2 F.Supp. 751 (D. Md. 1998) (the court determined that the issue of whether documentation of the employee’s job difficulties was part of a plan to terminate him based on discrimination precluded summary judgment.)

Bryan A. Chapman, Esquire

www.baclaw.com

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