Larry's Legal Lessons: Retaliation Suits by Employees Expected to Increase

In many states an employer's insurance policy can not pay for "punitive" damages and documentation is critical for employment history.


Legal Lessons Learned: Employers throughout the nation, including fire and EMS departments, need to re-train their front-line and other supervisors to 1.) document every internal complaint of discrimination and your investigation, 2.) document poor job performance and corrective action discussions with employees (written warnings, corrective action plans, etc.). This includes employees who have earlier filed a complaint of discrimination. While they are not to be "targeted" for their earlier complaint, their current poor workplace conduct is not to be ignored. Establish a policy of documenting of all employee counseling, and follow it with all employees and supervisors.

On May 27, 2008, the U.S. Supreme Court issued two significant decisions, one involving an employee in private industry (an assistant manager of a Cracker Barrel restaurant in Bradley, IL), and the other involving a federal government employee (a U.S. Postal Service window clerk in Puerto Rico). In both cases, the Court held that the "retaliation" lawsuits should not have been dismissed by federal U.S. District Court judges; the cases have been set back so pre-trial discovery may proceed (document disclosures, depositions).

In CBOCS West, Inc. v. Humphries, an African-American assistant manager, Mr. Hendrick G. Humphries, had filed a lawsuit in federal court in Illinois claiming he was terminated after making in internal complaint about a Caucasian assistant manager who had fired a black employee, Venus Green. The U.S. Supreme Court, 7 to 2, did not discuss many of the underlining facts in this case regarding Humphries' termination, since the case was dismissed prior to trial or even pre-trial discovery. The Court ordered the case back to Illinois federal court. (See link. (PDF)

The U.S. Court's website includes briefs filed in the case, including "friend of the Court" briefs. The following facts are from the amici curiae brief filed by the Equal Employment Advisory Council and the National Federation of Independent Business Legal Foundation, two non-profit, employer-oriented interest groups in Washington, D.C.

"In his last several months of his employment, Humphries received nine written and verbal warnings regarding deficient work performance, the last three of which, issued in September 2001, indicate they were 'final' warnings. (Joint Appendix filed by Humphries and Cracker Barrel) at 109... In November 2001, Humphries complained to William Christensen, the Bradley, IL, store's district manager, about discriminatory employment practices. Id. Specifically, Humphries complained that he and Venus Green, an African-American employee who recently had been terminated by Joe Stinnett, another associate manager, were treated unfairly on the basis of race. Id. Christensen received the complaint, but evidently failed to conduct an investigation in accordance with Cracker Barrel's company policies. Id. at 119...

On Dec. 3, Stinnett reported finding the store safe unlocked. Id. at 20... Humphries was on duty on Dec. 2, and it was his responsibility pursuant to company policies to ensure the safe was closed and locked before leaving the store. Id. On Dec. 5, the company terminated Humphries' employment based on his violation of company policies in failing to ensure the store safe was closed and locked on Dec. 2. Id. Humphries denied that it was he who left the store safe unlocked on December 2. Id." Brief, pages 4 & 5.

The U.S. Supreme Court's majority decision, written by Justice Breyer, holds that Mr. Humphries may sue under so-called "1981 statute." This refers to the post-Civil War statute, written in 1886, that provides that "[a]ll persons within the jurisdiction of the United States shall have the same right in every State and Territory to make an enforce contracts...as in enjoyed by white citizens." 42 U.S.C. 1981 (a). Justice Breyer wrote, "The basic question before us is whether the provision encompasses a complaint of retaliation against a person who has complained about a violation of another person's contract-related 'right.' We conclude that it does." Majority Opinion, page 1.

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