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

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 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.

Justice Thomas wrote a strong Dissenting Opinion: "Retaliation is not discrimination based on race." Dissenting opinion, page 4. "Of course, if an employer had a different retaliation policy for blacks and whites - firing black employees who complain of race discrimination but not firing similarly situated white employees - a black employee who was fired for complaining of race discrimination would have a promising (Sec.) 1981 claim. But his claim would not sound in retaliation; rather, it would be a straightforward claim of race discrimination." Page 4, footnote 2.

In Gomez-Perez v. Potter, Post Master General, a 45-year-old U.S. Postal Service in Puerto Rico sued in federal court, claiming retaliation after she was denied a job transfer back to her former post office, filed a union grievance and then an internal complaint of age discrimination. See Ms. Myrna Gomez-Perez was a full-time "window distribution clerk" in Dorado, Puerto Rico, requested and receive a job transfer to a part-time position the post office in Moca, Puerto Rico, so she could be closer to her ill mother. After only a month in the new job, she requested a transfer back to her old full-time job. Her supervisor denied the request, explaining that he had changed the position to part-time and filled it with another employee. Ms. Gomez-Perez that filed a grievance through her union, alleging age discrimination - it was unsuccessful. She then filed an internal complaint of age discrimination with the Post Service EEO office.

As that complaint was pending, she allegedly suffered retaliation in various forms: being called into meetings with her supervisor during which various groundless complaint were made against her; some one wrote her name of a anti-sexual harassment poster; being falsely accused by co-workers of sexual harassment; and being told by co-workers to "go back" to where "she belonged."

She filed a lawsuit in federal court for "retaliation" because of her age discrimination complaint, which was dismissed. In a 5 to 4 decision, the majority held that she is protected from retaliation under the federal Age Discrimination in Employment Act (ADEA), 29 U.S.C. 633 (a)(a), and Congress intended to protect federal employees when filing internal complaints of age discrimination. The Court ordered the case set back to the trial judge in Puerto Rico for pre-trial discovery and jury trial.

The majority decisions in these two cases should be a "red flag" to employers nationwide. Congress has placed no caps on the amount damages that can be awarded by juries under "1981 suits" and these suits can be filed directly in federal court without any EEOC "right to sue" letters (compare to Title VII, where Congress has placed caps on damages, and employees must first file a charge with the EEOC and get a "right to sue" letter). Another caution: in many states an employer's insurance policy can not pay for "punitive" damages. Employers need to re-train their supervisors - "document/document."

LARRY BENNETT, a Contributing Editor, is an attorney and the Deputy Director of Fire Science Education at the University of Cincinnati's Fire Science Department. He has been a volunteer firefighter/EMT for the past 27 years, and is the author of a new textbook, Fire Service Law, that is used by the National Fire Academy (NFA) in its distant learning course, Political and Legal Foundations of Fire Protection. The NFA appointed Larry as their Subject Matter Expert to update the curriculum in this course. and he serves on the NFPA 1500 Fire Service Occupational Safety and Health Committee. Larry writes a free Fire & EMS and Safety Law newsletter which you can sign up online to receive free. Larry writes a free Fire & EMS Law newsletter that can be read at the UC Fire Science web page To read Larry's complete biography and view his archived articles, click here. You can reach Larry by e-mail at