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

The Civil Rights Attorney’s Fees Awards Act of 1976 authorizes the award of “a reasonable attorney’s fee” to “the prevailing party”

 

The Civil Rights Attorney’s Fees Awards Act of 1976, 42 U.S.C. § 1988, authorizes the award of “a reasonable attorney’s fee” to “the prevailing party”. Lefemine v. Wideman, 672 F. 3d 292, 302 (4th Cir. 2012) (The Supreme Court has held that generally “plaintiffs may be considered `prevailing parties’ for attorney’s fees purposes if they succeed on any significant issue in litigation which achieves some of the benefit the parties sought in bringing the suit.”)

Congress enacted  fee-shifting statutes that allow a court to award attorney’s fees to the “prevailing party” in civil rights lawsuits.  A “prevailing party” acts “not for himself alone but also as a “private attorney general” who advances important public policies.  Congress wanted to encourage those, who are victims of civil rights violations, to seek relief in the courts.

The fact that a settlement was reached has no bearing on a plaintiff’s right to attorneys’ fees. Buckhannon Board & Care Home, Inc., et al. v. West Virginia Department of Health and Human Resources et al., 532 U.S. 598, 643 (2001) (“A plaintiff prevails, federal judges have overwhelmingly agreed, when a litigated judgment, consent decree, out-of-court settlement, or the defendant’s voluntary, postcomplaint payment or change in conduct in fact affords redress for the plaintiff’s substantial grievances.”); Hewitt et al v. Helms, 482 U.S. 755, 761 (1987) (“It is settled law, of course, that relief need not be judicially decreed in order to justify a fee award under § 1988. A lawsuit sometimes produces voluntary action by the defendant that affords the plaintiff all or some of the relief he sought through a judgment — e. g., a monetary settlement or a change in conduct that redresses the plaintiff’s grievances.”); Maher v. Gagne, 448 U.S. 122, 129 (1980) (“We also find no merit in petitioner’s suggestion that respondent was not the “prevailing party” within the meaning of § 1988. The fact that respondent prevailed through a settlement rather than through litigation does not weaken her claim to fees.”)

 

Bryan A. Chapman, Esquire

www.baclaw.com

Retaliation claims on the rise

In 2013, retaliation claims made up 41 percent of the discrimination complaints filed with the U.S. Equal Employment Opportunity Commission (EEOC). Retaliation claims are on the rise while other types of discrimination claims have leveled off or even dropped.

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

For example, an employee has performed at a satisfactory level or higher for quite some time.  The employee complains to the employer about workplace discrimination, for instance, sexual harassment.  Shortly thereafter, the employee is written-up, given unsatisfactory job performance evaluations, or terminated.

A retaliation claim is a separate claim from the underlying discrimination claim.  In a lawsuit, a plaintiff can win a retaliation claim while losing the underlying discrimination claim.  In general, retaliation claims are easier to prove than discrimination claims.

The Supreme Court expanded the scope of retaliation in Burlington N. & Santa Fe Rwy. Co. v. White, 548 U.S. 53 (2006) (“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.’”)

To establish a prima facie claim for retaliation, a plaintiff must show:

  1. they engaged in protected activity;
  2. the defendant took action that would be “materially adverse to a reasonable employee or job applicant”; and,
  3. there is a causal connection between the protected activity and the asserted adverse action.

Materially adverse means harmful enough to “dissuade a reasonable worker from making or supporting a charge of discrimination.”  Burlington, 548 U.S. 68.

 

Bryan A. Chapman, Esquire

www.baclaw.com