Best Wrongful Termination Lawyer Reply: Can the company I work for transfer me in retaliation because I reported my boss for sexual harassment or race discrimination? If I sue my employer for gender discrimination, can they fire me? What should I do if I was fired today because I complained to human resources about religious discrimination?
Everyone sees the world from a different perspective. Certainly, our employment law attorneys have seen some discrimination cases that are very clear cut. (See Law: My Boss Called Me Nigger and Monkey. Can I Sue For Employment Discrimination?; Race Discrimination: Using The “N-Word,” Even Once, Can Create A Hostile Work Environment; My Racist Boss Says “Nigger,” “Wetback,” “Wagon Burner,” & “Beaner” All The Time! I Need A Lawyer!). However, there are a lot of decisions that your boss, manager, or supervisor make that are based on your race/color, religion, gender/sex, national origin, age, disability, or LGBTQ+ status without broadcasting it to the world. Indeed, almost every employer will lie when caught discriminating against an employee based on that worker’s protected class status. (See Top Lawyer: What Should I Do If My Boss Lies About Why I Was Fired?; Can I Be Fired For Lies By My Racist Manager? I Need The Best Employment Discrimination Lawyer In Ohio). Sometimes, because of the unfortunate rampant presence of ongoing discrimination in the workplace, some employee will see discrimination where there is none.
With these widely different possibilities and perspectives, both federal law and Ohio law want employees to error on the side of reporting any possible unlawful discrimination or harassment based on race/color, religion, gender/sex, national origin, age, or disability. Indeed, the law protects any employee who reports, opposes, or participates in an investigation of any such discrimination or harassment even if it turns out to be unfounded. Specifically, an employer cannot take any adverse actions against an employee for reporting, opposing, or participating in an investigation into discrimination based on a protected class. The Ohio Revised Code provides on this point:
It shall be an unlawful discriminatory practice for any person to discriminate in any manner against any other person because that person  has opposed any unlawful discriminatory practice defined in this section or  because that person has made a charge, testified, assisted, or participated in any manner in any investigation, proceeding, or hearing under sections 4112.01 to 4112.07 of the Revised Code.
Likewise, the anti-retaliation provisions of Title VII of the Civil Rights Act of 1964, Age Discrimination in Employment Act (“ADEA“), and Americans with Disabilities Act (“ADA“) protect an employee who speaks out about perceived unlawful discrimination.
The conduct required to hold an employer liable for unlawful discrimination based on race/color, religion, gender/sex, national origin, age, or disability is much higher than is needed to hold an employer liable for retaliation. Specifically, an employee making a claim for discrimination must prove that the employer took an adverse employment action because of that employees’ protected class. For employment discrimination claims, “adverse employment action is defined as a material adverse change in the terms and conditions of employment.” Coryell v. Bank One Trust Co., N.A., 10th Dist. Franklin No. 07AP–766, 2008-Ohio-2698, 2008 WL 2308769, ¶ 32. This would include a wrongful termination, demotion, cut in pay, suspension, removal of authority, and the like. However, employment retaliation claims only require proof of an adverse action. Other than lacking the word employment between adverse and action, the difference is significant. Essentially, an adverse action need only be materially enough to dissuade any other person from complaining about perceived unlawful discrimination in the future.
The difference can best be seen in the recent case of Rogers v. Henry Ford Health Sys., 897 F.3d 763, 766 (6th Cir.2018) out of the Sixth Circuit Court of Appeal, which covers Ohio, among other states.
In the case, the employee, Monica Rogers, was an African-American woman in her sixties. The employer, Henry Ford Health System (“HFHS”), had employed Rogers for more than thirty years. At the time in questions, Rogers was employed as a consultant in HFHS’s Organizational Human Resources Development (“OHRD”) Department. Rodgers applied for a promotion but was denied reclassification to be a Senior OHRD Consultant, a position that she had temporarily filled. Thinking it was about her age, Rodgers asked her supervisor, who, according to Rodgers’ affidavit, responded, “it has nothing to do with your age, it’s because you’re black.” Believing that the decision was because she was Black and over 60-years-old, Rogers filed an internal complaint of racial and age discrimination with her employer. When the employer self-determined that there was no discrimination, Rogers filed a charge with the Equal Employment Opportunity Commission (“EEOC“). (See Top Employment Law Attorney: Do Not File With The EEOC Without Doing This First; File With The EEOC Or Get A Lawyer? Call The Right Attorney; Should I Get A Lawyer To Help Me File An EEOC Charge?; and Should I File With The EEOC On My Own? Call The Right Attorney).
As chance would have it, a couple of months after the EEOC charge, the employer claims that it got reports that Rogers’ “emotional state was erratic and that they feared she might pose a physical threat to herself or others.” Despite no such prior reports or history of discipline, the employer put Rogers on paid leave of absence and sent her for a fitness-for-duty examination. After a doctor found no such problems and cleared Rogers to return to work, Rogers asserts that her boss gave her the choice between transferring to a position in a subsidiary of HFHS or resigning with a severance package. Still wanting to work and fearing the job market for 60-year-olds, Rogers begrudgingly took the transfer.
Eventually, Rogers files a complaint for race discrimination, age discrimination, and retaliation for complaining about the employment discrimination. As to the discrimination claims, the employer argued that argues that Rogers was not qualified for promotion, regardless of what duties she was actually performing, because she did not have the requisite minimum level of education, which for this position was a master’s degree. Rogers, whose highest level of education was high school graduate, could not identify any white employees who had two educational levels waived. The court accepted these previously established in print job requirement a justifiable business reason, and unfortunately did not address the direct evidence from the supervisor saying that the reason for denying the promotion was because of her race. As such, the court dismissed the race and age claims.
But, just because the employment discrimination claims were lost did not mean that all was lost. The United States Court of Appeals for the Sixth Circuit moved onto the retaliation claim, which Rogers also lost in the trial court, and set forth the law:
To establish a prima facie case of retaliation a plaintiff must establish that: (1) she engaged in a protected activity; (2) her “exercise of such protected activity was known by the defendant; (3) thereafter, the defendant took an action that was ‘materially adverse’ to the plaintiff; and (4) a causal connection existed between the protected activity and the materially adverse action.” Laster v. City of Kalamazoo, 746 F.3d 714, 730 (6th Cir. 2014) (quoting Jones v. Johanns, 264 Fed.Appx. 463, 466 (6th Cir. 2007)). HFHS has implicitly conceded that Rogers has established the first and second elements of her prima facie case, as it makes no argument with respect to either.
Critical to our conversation in today’s employment law blog subject, the United States Court of Appeals for the Sixth Circuit reversed the trial court for mixing up the standard between discrimination claims and retaliation claims:
In articulating the third element of a prima facie case of retaliation, the district court erred and stated that Rogers needed to show that she suffered an adverse employment action constituting a “significant change in employment status.” R. 64 (Dist. Ct. Op. at 12) (Page ID #1950) (quoting Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998)). The Supreme Court has rejected the application of this requirement, which is applied to Title VII discrimination claims, to Title VII retaliation claims. Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 64, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006) (“[T]he antiretaliation provision, unlike the substantive discrimination provision, is not limited to discriminatory actions that affect the terms and conditions of employment.”). Instead, “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.” Id. at 68, 126 S.Ct. 2405 (internal quotation marks and citation omitted)). This showing is less burdensome than what a plaintiff must demonstrate for a Title VII discrimination claim. Laster, 746 F.3d at 731.
Based on this law the Sixth Circuit Court of Appeals reversed the trial court:
A reasonable factfinder could conclude that Rogers suffered materially adverse actions. Rogers was referred to a fitness-for-duty exam, placed on leave, escorted out of the office, had her badge removed, and her email set to send out an automated reply that she was no longer with HFHS. Upon her return to work after she passed her fitness-for-duty-exam, Rogers met with Adams and Harrington-Davis and they offered Rogers a choice about her future employment with HFHS. The parties dispute exactly what Rogers was offered, but a rational factfinder could credit Rogers’s testimony that she had the choice only between taking a severance package or transferring to HAP. According to Rogers, her position at HAP is inferior to her position in the OHRD Department of HFHS even though she received the same salary. Her previous position allowed her to interact with many members of senior management and take on more impactful roles. At HAP, she has relatively little exposure to upper management and Rogers feels that her opportunities to advance are damaged by that lack of interaction. HFHS has proffered no evidence rebutting Rogers’s claims about the inferiority of her new position.
The cumulative effect of these actions is sufficient such that a jury could find that they would have dissuaded a reasonable employee from making a charge of discrimination. [Citations to the record omitted]
Personally, our employment law attorneys would argue that the above conduct, especially the demotion to a lesser position should meet the higher adverse employment action standard, but the point here is that there are two different standards. And, based on this decision, Rogers will get to argue her retaliation claim to the jury even though she has already lost the age and race discrimination claims.
Let’s look at one more example, last week in a trial before the U.S. District Court for the Western District of Missouri, Lisa Benson-Cooper, the plaintiff-employee, argued her race discrimination and retaliation claims against KSHB-TV 41 Action News to a jury. After a 14-year career as a report at 41 Action News, Benson-Cooper alleges that she faced discrimination during the last few years at the station. Benson-Cooper first filed suit asserting that the station passed her over for a promotion because she is black. Specifically, Benson-Cooper argued that because she is black, the employer wrongfully denied her a promotion to the station for a weekend morning anchor position in 2013 and for a position as a consumer/ investigative reporter in 2015. The employer disputed this by arguing that Benson-Cooper did not even apply for these positions because she was on maternity leave when the weekend anchor position became available and because there were other more qualified applicants.
After filing the suit, and while still employed, the station suspended her and then decided not to renew her contract in 2018. As a result, Benson-Cooper amended her complaint to assert a claim of retaliation. The employer offered a host of reasons for the suspension and termination, including that she shared an article that they found inflammatory on Facebook; her husband failed to pay their taxes for five years; Benson Cooper allegedly yelled at her supervisor; and that Benson Cooper lied during an interview with an independent investigator that the employer hired.
Given the theme of this blog, you can probably guess that the jury return a split verdict finding that the employer did not discriminate based on her race but did retaliate against her for filing the race discrimination complaint. In doing so, the jury awarded her $26,000 in actual damages and then tacked on $175,00 in punitive damages. In both instances, Benson-Cooper has asked the jury for substantially more, including asking for between $8 million to $10 million in punitive damages. Given that punitive damages were awarded, the court will likely be tacking on an additional award of attorneys’ fees and prejudgment interest. Of course, the employer asked the jury to award nothing. Nonetheless, both employer and employee are claiming victory.
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