The purpose of this alert is to highlight some recent significant employment decisions of the Supreme Court of the United States as well as Maryland state and federal courts, several in which PK Law has successfully defended its employer clients.
SUPREME COURT FAVORABLE FORUM FOR RETALIATION PLAINTIFFS
A recent ABA Journal article noted that the Supreme Court of the United States continues to provide a favorable forum for retaliation plaintiffs. Interestingly, this is a trend that not only belies the Court’s reputation as “pro-business,” but also contrasts with the fate of other underlying discrimination claims, including those based on race, sex, age, and disability.
· Thompson v. North American Stainless, 131 S. Ct. 863 (2011). In Thompson, the Court unanimously held that Title VII protected a male employee from retaliatory firing three weeks after his fiancée, also an employee, filed a sex discrimination suit against their employer. The Court so held even though the male employee had not personally opposed any unlawful employment practice, complained about discrimination in the workplace, or participated in another protected activity. The Court reasoned that the provisions of Title VII applied to the facts in Thompson because the Act’s purpose “is to protect employees from their employers’ unlawful actions” and the plaintiff fell within “the zone of interests protected by Title VII.” The Court neglected, however, to provide any clear guidance regarding what types of relationships trigger the statute.
· Kasten v. Saint-Gobain Performance Plastics Corp., 131 S. Ct. 1325 (2011). Similar to Thompson, the Court in Kasten held that the anti-retaliation provision of the Fair Labor Standards Act applies to an employee’s oral complaints as well as to written ones. The Court reasoned that limiting the scope of the FLSA to written complaints would “take needed flexibility from those charged with the Act’s enforcement,” and could also “prevent government agencies from using hotlines, interviews and other oral methods of receiving complaints.”
In contrast, the Court has been less plaintiff-friendly in its recent decisions involving other underlying discrimination claims, as in Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007) (imposing high hurdles for race and gender-based pay differential claims) and Gross v. FBL Financial Servs., 129 S. Ct. 2343 (2009) (imposing similar barriers under the Age Discrimination in Employment Act involving mixed motives for an employer’s adverse actions).
Other noteworthy pro-employee retaliation decisions include Gomes-Perez v. Potter, 553 U.S. 474 (2008) (employees can bring retaliation claims under the ADEA); CBOCS West Inc. v. Humphries, 553 U.S. 442 (2008) (employees can bring retaliation claims under Section 1981); Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53 (2006) (Title VII’s retaliation clause protects employees from retaliatory actions beyond those affecting the terms and conditions of employment); and Robinson v. Shell Oil Co., 519 U.S. 337 (1997) (former employees may bring Title VII retaliation action).
PK LAW OVERCOMES SUPREME COURT’S PLAINTIFF-FRIENDLY TREND WITH STRING OF SUCCESSES DEFENDING EMPLOYERS IN RETALIATION SUITS
In recent months, PK Law has been successful in defending a number of retaliation suits against employer.
· Parris v. Board of Education of Baltimore County, 2011 U.S. Dist. LEXIS 84074 (D. Md. July 26, 2011) – In Parris, PK Law obtained summary judgment in a race discrimination and retaliation case pending in the U.S. District Court for the District of Maryland. U.S. District Judge Benson E. Legg, who earlier in the case dismissed six of seven counts in favor of the school board, dismissed the remaining Title VII retaliation claim which centered on the school board’s reassignment of the plaintiff from an assistant principal position to that of a classroom teacher after she emailed a local community activist to express her frustration with the organization’s perceived refusal to investigate her claims of workplace discrimination. The school board viewed the email, which contained references to workplace violence, as unbefitting a school administrator who is at all times expected to use discretion and handle sensitive matters in a calm, professional manner while also serving as a role model. Finding inappropriate the language and tone of the email, the school board reassigned the plaintiff to a classroom teaching position at a different school. The plaintiff resigned from the school board within days after her reassignment and before it was to become effective. In granting summary judgment on the remaining retaliation claim, Judge Legg acknowledged that “schools can be difficult environments” and that “administrators frequently encounter situations that are emotionally charged.” He further agreed with the school board’s assessment that the email cast serious doubt on the plaintiff’s ability to shoulder such enormous responsibilities and found that no reasonable jury could conclude that the school board’s stated reasons for her reassignment were pretextual.
· Bishop v. Board of Education of Calvert County, 2011 U.S. Dist. LEXIS 71794 (D. Md. July 5, 2011) – In Bishop, PK Law was successful in obtaining dismissal of a race discrimination and retaliation suit against a local school board. Chief Judge Chasanow of the U.S. District Court for the District of Maryland dismissed plaintiff’s lawsuit based on claims of race discrimination and retaliation under Title VII and Maryland’s state law corollary, Title 20 of the State Government Article of the Annotated Code of Maryland (formerly known as Article 49B of the Annotated Code of Maryland). PK Law successfully argued that the plaintiff had not adequately pled race discrimination or retaliation because he had not suffered an adverse employment action. Specifically, Judge Chasanow agreed that a verbal reprimand plaintiff received four months after complaining of race discrimination would not have discouraged a reasonable employee from making or supporting a charge of discrimination.
While it did not affect the outcome of the case, Bishop illustrates the important differences between Title VII claims and those asserted under Title 20. In Maryland, Title VII claimants must file a charge of discrimination with the Equal Employment Opportunity Commission within 300 days of an alleged discriminatory practice in order to exhaust administrative remedies before filing a Title VII suit. Notably, although Title 20 provides that claimants must file a similar charge with the Maryland Commission on Human Relations within six months of the alleged discriminatory practice, in dismissing the case, Judge Chasanow confirmed that a claimant “exhausts his administrative remedies for purposes of commencing a civil action, however, by filing an administrative complaint within the time allotted by federal, state, or local law.” Thus, because the time for filing under federal law is 300 days in Maryland, a Title 20 plaintiff has the same amount of time to exhaust his or her Title 20 claims.
· Tully v. Board of Education of Baltimore County, 2011 U.S. Dist. LEXIS 70582 (D. Md. June 30, 2011) – In Tully, PK Law successfully obtained summary judgment in a Title VII retaliation case then pending before the Honorable J. Frederick Motz in the U.S. District Court for the District of Maryland. There, Judge Motz found that the plaintiff was not, as she claimed, a victim of retaliation for having testified against her school board employer in an unrelated sexual harassment case 11 ½ months before she was disciplined for threatening a supervisor. While the act of testifying against the school board amounted to a protected activity under the Act, Judge Motz found that the formal reprimand imposed upon the plaintiff by the school board (consisting of a 10-day period of unpaid suspension), lacked temporal proximity to bring it within the scope of an actionable retaliation claim.
Other noteworthy recent Maryland court cases include:
· Hansen v. City of Laurel, 2011 Md. LEXIS 445 (July 15, 2011) – In Hansen, the Court of Appeals of Maryland held that plaintiffs suing cities and counties in Maryland must strictly comply with the Local Government Tort Claims Act’s requirement that plaintiffs affirmatively state in their complaints that they have satisfied the statutory 180-day notice requirement of their intent to file a claim, and that their failure to do so will result in dismissal of their claims with prejudice. In Hansen, the plaintiff, an employee of the City of Laurel, sent written notice to the city administrator within 180 days of his termination that he would pursue age and disability discrimination claims against the city. The plaintiff also pursued administrative remedies before filing suit in the Circuit Court for Prince George’s County. The city moved dismiss for plaintiff’s failure to allege in the complaint that he had notified the city of his intent to file a claim. The plaintiff filed an opposition asserting that he had notified the city administrator within 180 days and attaching a copy of his letter as evidence. The plaintiff also attached a copy of the EEOC charge which he had forwarded to the city administrator around the same time as the notice letter. The circuit court granted the city’s motion to dismiss, and the Court of Special Appeals affirmed.
In a 6-1 decision, the Court of Appeals also affirmed. The Court rejected plaintiff’s counsel’s request that she be allowed to amend the complaint to prevent a manifest injustice to plaintiff, noting that plaintiff’s counsel had ample opportunity to amend but did not, even after the city filed its motion to dismiss. Judge Harrell, writing for the majority, stated that non-observance of statutory notice provisions “should have consequences; otherwise they are not rules at all.” Judge Adkins, the sole dissenter, thought the majority’s opinion too harsh, arguing that the courts “should demonstrate in our decision-making that we maintain a high degree of appreciation for the fact that rules of procedure are only a mechanism, not traps for good faith pleaders.”
· Moody v. Arc of Howard County, 2011 U.S. Dist. LEXIS 73540 (July 7, 2011). In Moody, plaintiff’s counsel refused to dismiss his clients’ age discrimination case even after discovery did not reveal any evidence of such discrimination and even after opposing counsel provided him controlling authority from the 4th Circuit that individuals could not be sue under the ADEA. Regarding the latter, the Court rejected the argument of plaintiff’s counsel that he should be allowed to argue that the authority precluding suit against individuals should be overruled, noting that plaintiff’s counsel had failed to offer argument as to why or how the 4th Circuit had erred in its interpretation of the ADEA.
In concluding, the Court metaphorically stated: “Attorneys are entitled, and sometimes even obligated, to sail into shallow waters as investigation and discovery reveal weaknesses in the factual and legal theories of a case. However, once the ship has not just bumped a shoal or two, but instead has collided with rocks and begun taking water, the voyage is over and counsel is required to drop his sails.” This case may prove helpful in seeking the dismissal of future cases.
Inquiries about the information provided above, as well as other employment and education matters should be directed to PK Law’s Labor/Employment http://www.pklaw.com/practice-areas/labor-and-employment/ and Education Group http://www.pklaw.com/practice-areas/education-school-law/.