Retaliation Articles

 The Second Circuit Court of Appeals recently held that employees bringing claims of
retaliation under the federal FMLA need only prove that their exercise of FMLA rights was a
“motivating factor” in an adverse employment action, and not the “sole factor.” Woods v Start
Treatment and Recovery Centers. This case reverses the Second Circuit’s previous position on
the issue.

 The plaintiff worked as a substance abuse counselor for defendant. She took FMLA
leave to deal with a legitimate medical condition. Within 3 weeks of returning to work from
leave, she was fired. Defendant claimed it was due to her well documented poor performance.
Plaintiff argues it was due to her exercise of FMLA rights.

 The District Court found for the company. The Second Circuit vacated the decision
because it concluded the District Court relied on the wrong section of the law, and the incorrect
standard of proof, when rendering its decision.

 The Circuit Court reviewed two sections of the FMLA that arguably applied. Section
2615(a)(2), which was used by the District Court, prohibits an employer from discharging or
discriminating against an employee for opposing any practice made unlawful by the Act. Under
this section, the District Court held that the “but for” standard applied, and an employee must
show that the sole reason for termination was retaliation for exercising FMLA rights.

 The Second Circuit, however, relied on section 2615(a)(1), which makes it illegal to
interfere with, restrain, or deny any right provided by the law. It discussed how retaliation for
exercising actual FMLA rights, in contrast to retaliation for opposing some practice, is more
aptly covered under 2615(a)(1) than (a)(2). In addition, it also ruled that the lower “motivating
factor” standard applies to section 2616(a)(1), and not the higher “but for” standard. The Court
left open whether the “but for” or “motivating factor” standard applies to section 2615(a)(2)
retaliation claims based on the opposition theory.

 As a result of the Court’s decision, plaintiff’s claims will again be examined by the
District Court using the newly enunciated standard to see if her exercise of FMLA rights was at
least a motivating factor in the termination decision. If so, she wins, as she no longer has to
prove it was the sole factor.

 The ruling eases the burden employees must meet when bringing retaliation claims after
exercising FMLA rights.

 The U.S. Court of Appeals for the Second Circuit recently ruled that oral and written
complaints regarding wages made to supervisors followed by an adverse job action are sufficient
to support retaliation claims under the Fair Labor Standards Act (“FLSA”). Greathouse v. JHS
Security, Inc. Under the FLSA’s anti-retaliation provision it is unlawful to discharge or
discriminate against any employee because such employee has filed any complaint related to the
FLSA’s provisions. In previous decisions the Second Circuit held any such “complaint” must be
made in writing to a government agency, and internal complaints to supervisors, as well as oral
complaints to an agency, were insufficient to trigger protection. In reversing its position, the
Second Circuit relied on guidance from a U.S. Supreme Court decision making oral complaints
to an agency sufficient, and sister Circuit decisions making any internal complaint enough to
gain protected status.

 Under its new ruling, employees are protected from retaliation if they file oral or written
complaints to either a government agency or a supervisor. The complaint must, however, 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 protection. Mere
hallway grumblings are not enough.

 In the instant case, the employee, a security guard, complained to his supervisor about a
series of non-payments, late payments, and unauthorized payroll deductions. The supervisor’s
response was that he would be paid when the supervisor felt like it. The supervisor then pointed
a gun at the employee, which the employee took as a sign that he was being discharged. The
employee then filed claims of non-payment and retaliation based on the discharge.

 The Court’s ruling brings it in line with other Circuits ruling on the issue, as well as the
Department of Labor’s position. It also places FLSA complaints on equal footing with the law
regarding retaliation under federal discrimination law, which only requires an employee to
oppose discriminatory practices. Internal oral and written complaints are sufficient to show
opposition.

 Given this ruling, employers should be prepared to respond to internal complaints
claiming violations of the wage laws, and take steps to guard against retaliation toward those
making them.

 The U.S. Supreme Court has made it harder for employees to win retaliation claims under
Title VII. Retaliation is defined as taking an adverse employment action against someone
because they opposed a discriminatory act (“opposition”), or filed a complaint or assisted in a
legal proceeding related to a discriminatory act (“participation”). Now, instead of having to
prove an employee’s opposition or participation was a “motivating factor” in the employer’s
decision, an employee must prove that “but for” their opposition or participation, the adverse
action would not have occurred. University of Tex. Southwestern Med. Ctr. v. Nassar.

 In this case, the plaintiff was a physician who worked both as a professor for the
University of Texas, and as a staff doctor at Parkland Memorial Hospital. The two institutions
had an agreement that students studying at the University would receive clinical training at the
Hospital, and in return the Hospital would first fill any staff doctor vacancies with University
faculty members.

 Dr. Nassar was of Middle Eastern descent, and specialized in internal medicine and
infectious diseases. His faculty supervisor was Dr. Beth Levine. Dr. Nassar accused Dr. Levine
of discrimination based on religion and ethnicity. In particular, he alleged she undeservedly
scrutinized his billing practices and productivity, and made insensitive remarks regarding Middle
Eastern people. After complaints to Dr. Levine’s superior, Dr. Fitz, failed to resolve matters to
Dr. Nasser’s satisfaction, he quit, but attempted to continue working at the Hospital. After
quitting, he wrote a letter to various members of the University community. He claimed his
departure stemmed from Dr. Levine’s harassment, and her religious, racial and cultural bias
against Arabs and Muslims. After reading the letter and learning that Dr. Nassar intended to
work for the Hospital while no longer on the faculty, Dr. Fitz interceded and the Hospital ended
Dr. Nassar’s employment.

 Dr. Nassar then filed two claims. One was for religious and ethnicity discrimination by
Dr. Levine that led to his constructive discharge. The second was for retaliation by Dr. Fitz that
led to the loss of his job at the Hospital.

 The trial court found for the doctor on both claims. The Fifth Circuit Court of Appeals
reversed on the discrimination claim, but affirmed the retaliation award. In doing so the
Appellate Court found Dr. Nasser had shown that Dr. Fitz’s intervention with the Hospital was
inspired, at least in part, because Dr. Nassar opposed Dr. Levine’s alleged discriminatory
conduct. In essence, Dr. Nassar’s opposition was a “motivating factor” in Dr. Fitz’s intervention
with the Hospital.

 The Supreme Court, however, held that the Appellate Court used the wrong standard.
Instead, it should have used the “but for” standard. In effect, the Court framed the question as
whether Dr. Fitz would have taken the same course of action absent Dr. Nassar’s opposition to
Dr. Levine’s conduct.

 Under this test, if part of Dr. Fitz’s intervention was triggered by his concern that the
Hospital was breaching its contract with the University by hiring Dr. Nassar, then Dr. Nassar
could not prove retaliation under the Act, even if Dr. Fitz was also motivated by Dr. Nassar’s
complaints regarding Dr. Levine. The Court remanded the case to the Fifth Circuit to make this
determination.

 In reaching its conclusion, the Court exhaustively discussed the legislative and judicial
history of Title VII, and the standards used in determining violations. Without getting into
excruciating detail, Title VII prohibits two forms of conduct. The first is “status based
discrimination” where an employer discriminates on the basis of race, color, religion, sex or
national origin. The second is “retaliation” where an employer takes an adverse employment
action against someone because that person opposed a discriminatory act, or complained of, or
sought legal remedies for unlawful workplace discrimination.

 In status based cases, employees can prove discrimination in one of two ways; through
direct or circumstantial evidence. Where an employee provides direct evidence that unlawful
discrimination was a “motivating factor” in making an adverse employment decision, he wins.
However, the employer is then given an opportunity to prove it had a “mixed motive” in making
its decision that included both the proven unlawful motive, and other lawful reasons. In effect, if
the employer can prove that “but for” [i.e., even absent] the discriminatory motive it would have
taken the same action, the employee is not entitled to reinstatement or any monetary relief, and
may only obtain a declaratory judgment, equitable relief, attorney’s fees, and costs. Under
Connecticut law, however, once an employer proves it would have taken the same action absent
the discriminatory motive, the employer is relieved of all liability. Levy v. CHRO, 236 Conn. 96
at fn. 19 (1996).

 Where an employee can only provide circumstantial evidence of discrimination another
process is used, which is known as the McDonnell Douglas burden shifting analysis. First, the
plaintiff must state a prima facie case of discrimination by showing he is a member of a
protected class, he suffered an adverse employment action, and the circumstances surrounding
the employer’s decision supports an inference of discrimination. Once the plaintiff states a
prima facie case, the burden of production, not persuasion, shifts to the defendant to articulate a
non-discriminatory reason for its decision. If successful, the plaintiff must then prove that the
employer’s offered reason was pretextual, and that intentional discrimination was a motivating
factor in the employer’s decision. In some cases, just proving the employer’s offered reason was
untruthful may be enough to infer a discriminatory motive. Reeves v. Sanderson Plumbing
Prods., 530 U.S. 133 (2000).

 When it comes to Title VII retaliation claims the “but for” standard now applies, not the
lower “motivating factor” standard. An employee must prove that absent his opposition or
participation, he would not have been subjected to the alleged retaliatory action.

 The higher “but for” standard already applies to both discrimination and retaliation
claims under the ADEA. See. Gross v. FBL Financial Services, Inc. The Court also suggested it
applies to ADA discrimination and retaliation cases. See Nassar at 32-33.

 An open question is whether the higher “but for” standard applies to discrimination and
retaliation claims brought in Connecticut under the Connecticut Fair Employment Practices Act.
Although the CHRO has historically applied the lower “motivating factor” standard, Connecticut
courts have repeatedly stated that Connecticut law must be interpreted with an eye toward federal
rulings. Levy v. CHRO, 236 Conn.96 (1996). To add more confusion, other judicial rulings
have interpreted Connecticut law as being more favorable than its federal counterpart. See ex.,
Desrosiers v. Diageo N. Am. Inc., 2010 Conn. Super. LEXIS 2267 at 18 (Sept. 9, 2010).

 Only time will tell how this all shakes out, but some clarity is beginning to emerge, at
least at the federal level.

 In a case of first impression, the U.S. District Court for Connecticut applied the “but-for”
causation standard to ADA retaliation claims. Saviano v. Town of Westport, Case No. 3:04-CV-
522(RNC) (D. Conn. Sept. 30, 2011). This is the first case following the U.S. Supreme Court’s
ruling in Gross v. FBL Financial Services, Inc. where the Connecticut District Court was asked
to determine if the Gross “but-for” holding applied to ADA retaliation cases. It answered in the
affirmative.

 Prior to the decision there was some doubt whether the Gross ADEA “but-for” standard,
or the Title VII “motivating factor” standard applied to ADA retaliation cases. As the ADEA’s
anti-discrimination section and the ADA’s retaliation provision both use the word “because,” the
court concluded the same “but-for” standard applied. Specifically, the ADA retaliation section
states no employer shall “discriminate against any individual because such individual has
opposed any act or practice made unlawful by this chapter, or because such individual made a
charge, testified, assisted, or participated in any manner in an investigation, proceeding, or
hearing under this chapter.”

 The significance of the case is that employees will now have a more difficult time
proving ADA retaliation claims. They will now have to show that the retaliation was specifically
and solely due to their protected activity; not just that their protected activity was a motivating
factor along with other permissible reasons for the employer’s decision.

 In a significant case issued last year, the U.S. Supreme Court expanded the right to file
Title VII retaliation claims to employees, based on their relationship to other employees who
directly engaged in protected activity. Thompson v. North American Stainless, LP, Case No. 09-
291 (U.S. January 24, 2011). Historically, only employees who engaged in protected activity
were thought to have the right to file retaliation claims.

 In this case, an employee, Miriam Regalado, filed a claim of sex discrimination against
her employer with the EEOC. Three weeks later her fiancé, Eric Thompson, was fired by the
same employer. Thompson brought a claim of retaliatory discharge under Title VII. The
company argued his termination was due to poor performance.

 Title VII makes it illegal to retaliate against any employee who has opposed an unlawful
practice, or who has made a charge, testified, assisted, or participated in a Title VII investigation,
proceeding or hearing. In reversing the lower court, the Supreme Court relied on its prior ruling
in Burlington Northern & Santa Fe Railway Co., v. White, 548 U.S. 53 (2006). In that case the
Court stated Title VII’s anti-retaliation provision prohibits any employer action that may
dissuade a reasonable worker from making, or supporting a charge of discrimination. The Court
went on to find that an employee with a legitimate claim might be dissuaded from engaging in
protected activity if she knew her fiancé would be fired. Therefore, Thompson’s discharge, if in
retaliation for his fiancées complaint, would violate the law.

 It then turned to whether Thompson could bring suit in his own name for an act deemed
to be directed toward his fiancée for bringing her discrimination claim. The Court noted that
Title VII permits any person “aggrieved” by a Title VII violation to bring suit. Those who might
be “aggrieved” form a larger class than those who may have been directly “discriminated”
against. By virtue of his firing, Thompson was “aggrieved” and fell within the “zone of
interests” sought to be protected by the law. As such, he gained standing to bring suit.
The Court left open the question of which third party relationships fall within the “zone
of interest,” beyond stating “we expect that firing a close family member will almost always
meet the standard, and inflicting a milder reprisal on a mere acquaintance will almost never do
so, but beyond that we are reluctant to generalize.”

 This decision opens the door to a wider group of employees who may be able to bring a
retaliation charge, even if they did not directly file a of claim discrimination, or participate in any
investigation or protected activity.