retaliation

CBOCS West, Inc. v. Humphries

Issues

Can an employee alleging employer retaliation for racial discrimination complaints  bring  a claim under 42 U.S.C. § 1981 ("Section 1981"), as amended by the Civil Rights Act of 1991?

 

42 U.S.C. § 1981 ("Section 1981") provides that any “person within the jurisdiction of the United States” has the same right to "make and enforce" contracts, regardless of their skin color. Section 1981 protects parties from discriminatory treatment both at the time when contracts are formed, and in post-formation conduct. Section 1981 applies to many aspects of the employment relationship because that relationship is considered contractual; however, the extent of this protection is unclear. This case addresses the question of whether an employee can bring a claim for retaliation under Section 1981. Retaliation does not clearly come under the scope of Section 1981 because often it is based not on an employee's characteristic, such as race, but instead on an action taken by the employee, such as complaining about work conditions or discriminatory treatment. However, retaliation claims often overlap with, and are difficult to separate from, claims of discrimination. Should the Supreme Court decide that Section 1981 protects an employee from race-based retaliation, it will give employees greater flexibility in filing claims of retaliation, because they will not be subject to the filing deadlines and limits on damages found in Title VII of the Civil Rights Act of 1964, an alternate provision which does encompass retaliation claims.

Questions as Framed for the Court by the Parties

Is a race retaliation claim cognizable under 42 U.S.C. § 1981?

Herndrick Humphries, an African American, worked as an associate manager in a Cracker Barrel restaurant owned by CBOCS West, Inc. ("Cracker Barrel") for three years, until Cracker Barrel terminated his employment on December 5, 2001 for violation of company policy. See Humphries v. CBOCS West Inc., 474 F.3d 387 389-90 (7th Cir.

Submit for publication
0

Crawford v. Metropolitan Government of Nashville

Issues

Does disclosing sexual harassment for the first time during an employer’s self-initiated internal investigation constitute protected activity under Title VII’s anti-retaliation provision, such that employees who disclose sexual harassment in this way are protected from being demoted or fired for doing so?

 

Vicky Crawford, a former employee of the Metro School District for Nashville and Davidson County, Tennessee, brought a Title VII anti-retaliation suit against her employers when she was fired from her job after participating in an internal investigation into sexual harassment rumors. During the investigation, Crawford confirmed the rumors by discussing specific incidents of sexual harassment. Crawford was fired shortly after the investigation was completed. Crawford filed a Title VII anti-retaliation suit, which the trial court dismissed at summary judgment. The Sixth Circuit upheld this decision, ruling that Title VII did not extend to employees who had taken part in an employer’s internal investigations but had not themselves instigated Equal Employment Opportunity Commission claims. On appeal to the Supreme Court, the Metropolitan School District claims that a broader reading of the Act would open up employers to countless Title VII claims, which could discourage employers from initiating internal investigations. Crawford contends that declining to extend the provisions of the anti-retaliation clause to employees who merely participate in internal investigations will discourage employees from taking part in such investigations due to the fear of retaliation, which will render such investigations pointless. How the Supreme Court decides the case will determine the scope of Title VII as applied to employee participation in internal investigations as well as what protections Title VII offers to employees and employers alike.

Questions as Framed for the Court by the Parties

Does the anti-retaliation provision of section 704(a) of Title VII of the 1964 Civil Rights Act protect a worker from being dismissed because she cooperated with her employer’s internal investigation of sexual harassment?

In 2002, the Metropolitan Government of Nashville and Davidson County (“Metro”) opened an internal investigation into allegations of sexual harassment against Dr. Gene Hughes (“Hughes”), the employee-relations director for the Metro School District. See Crawford v. Metro. Gov’t of Nashville and Davidson County, Tenn., 211 Fed. Appx.

Written by

Edited by

Submit for publication
0

Crawford v. Metropolitan Government of Nashville

Issues

Does disclosing sexual harassment for the first time during an employer’s self-initiated internal investigation constitute protected activity under Title VII’s anti-retaliation provision, such that employees who disclose sexual harassment in this way are protected from being demoted or fired for doing so?

 

Vicky Crawford, a former employee of the Metro School District for Nashville and Davidson County, Tennessee, brought a Title VII anti-retaliation suit against her employers when she was fired from her job after participating in an internal investigation into sexual harassment rumors. During the investigation, Crawford confirmed the rumors by discussing specific incidents of sexual harassment. Crawford was fired shortly after the investigation was completed. Crawford filed a Title VII anti-retaliation suit, which the trial court dismissed at summary judgment. The Sixth Circuit upheld this decision, ruling that Title VII did not extend to employees who had taken part in an employer’s internal investigations but had not themselves instigated Equal Employment Opportunity Commission claims. On appeal to the Supreme Court, the Metropolitan School District claims that a broader reading of the Act would open up employers to countless Title VII claims, which could discourage employers from initiating internal investigations. Crawford contends that declining to extend the provisions of the anti-retaliation clause to employees who merely participate in internal investigations will discourage employees from taking part in such investigations due to the fear of retaliation, which will render such investigations pointless. How the Supreme Court decides the case will determine the scope of Title VII as applied to employee participation in internal investigations as well as what protections Title VII offers to employees and employers alike.

Questions as Framed for the Court by the Parties

Does the anti-retaliation provision of section 704(a) of Title VII of the 1964 Civil Rights Act protect a worker from being dismissed because she cooperated with her employer’s internal investigation of sexual harassment?

In 2002, the Metropolitan Government of Nashville and Davidson County (“Metro”) opened an internal investigation into allegations of sexual harassment against Dr. Gene Hughes (“Hughes”), the employee-relations director for the Metro School District. See Crawford v. Metro. Gov’t of Nashville and Davidson County, Tenn., 211 Fed. Appx.

Written by

Edited by

Submit for publication
0

Duryea v. Guarnieri

Issues

Whether public employees may sue their government employers for retaliation under the First Amendment's Petition Clause when their petitions concern only matters of private interest.

 

In 2003, the Borough of Duryea, Pennsylvania fired its police chief, Charles J. Guarnieri, Jr. Guarnieri filed a grievance leading to arbitration and his reinstatement. When Guarnieri returned to his position, Duryea issued him a number of directives limiting the tasks he could and could not do  on  the job. Guarnieri filed a second grievance, leading to modification of the directives. Subsequently, Guarnieri sued Duryea in District Court alleging that Duryea issued the directives in retaliation for his filing of the 2003 grievance, violating his First Amendment right to petition. After a jury found for Guarnieri in District Court, Duryea appealed to the Third Circuit. The Third Circuit held that the First Amendment protects public employees in filing grievances concerning any matter, even those of a personal nature. The Supreme Court granted certiorari to determine whether public employees may sue their employers for  retaliation,  when the alleged retaliation is for the filing of grievances based on private matters rather than issues of public concern.

Questions as Framed for the Court by the Parties

Whether the Third Circuit erred in holding that state and local government employees may sue their employers for retaliation under the First Amendment's Petition Clause when they petitioned the government on matters of purely private concern, contrary to decisions by all ten other federal circuits and four state supreme courts that have ruled on the issue.

In February 2003, the Borough of Duryea, Pennsylvania ("Duryea") fired Police Chief Charles J. Guarnieri, Jr. See Guarnieri v. Borough of Duryea, 364 Fed. Appx. 749, 751 (3d Cir.

Written by

Edited by

Additional Resources

· Annotated Constitution, Legal Information Institute: First Amendment: Government as Employer.

· Society for Human Resource Management, Joanne Deschenaux: High Court to Decide Scope of Public Employees’ Retaliation Protection (Oct. 14, 2010).

· Business Management Daily, Hera S. Arsen: Supremes at Work: 8 Key Employment Law Cases on Docket (Nov. 26, 2010).

· First Amendment Center, Tony Mauro: Could Petition Shield Outspoken Public Employees? (Oct. 13, 2010).

Submit for publication
0

Gomez-Perez v. Potter

Issues

Does the Age Discrimination in Employment Act prohibit federal employers from retaliating against employees who have complained of age discrimination?

 

Myrna Gomez-Perez worked full-time for the United States Postal Service (“USPS”) in Dorado, Puerto Rico. She transferred to another office to be closer to her ill mother, but after one month, she requested to return to her past position in Dorado. After her request was denied, Gomez-Perez, then forty-five years old, filed an equal employment opportunity ("EEO") complaint with the USPS alleging age discrimination. Gomez-Perez claims that after she filed the complaint, her supervisors retaliated by reducing her work hours and lodging false complaints against her. She filed suit against John E. Potter as Postmaster and the USPS in the United States District Court for the District of Puerto Rico alleging that her supervisors' retaliation was in violation of ? 633a of the Age Discrimination in Employment Act. The USPS filed a motion for summary judgment which the district court granted. Gomez-Perez appealed. On appeal, the United States Court of Appeals for the First Circuit affirmed the summary judgment and agreed with the district court that ? 633a of the ADEA prohibited age discrimination against federal employees, but did not create a cause of action for victims of retaliation. Gomez-Perez argues that an implicit right of action for retaliation should be read into the ADEA in order to avoid giving the government a blank check to discriminate after an initial complaint has been filed with the EEOC. The USPS argues for a strict reading of ? 633a, which does not explicitly include a right of action for retaliation. The outcome of this case will affect the right of federal government employees to be free of workplace age discrimination, and will affect the government's costs in investigating workplace discrimination claims.

Questions as Framed for the Court by the Parties

Whether the federal-sector provision of the Age Discrimination in Employment Act, 29 U.S.C. ? 633a, prohibits retaliation against employees who complain of age discrimination.

Myrna Gomez-Perez started working for the United States Postal Service ("USPS") in 1987 in New York. Gomez-Perez v. Potter, 476 F.3d 54, 56 (1st Cir.

Submit for publication
0

Heffernan v. City of Paterson

Issues

To raise a First Amendment retaliation claim, must public employees show they were fired for actually engaging in constitutionally protected activities?

 

In Paterson, New Jersey’s 2006 mayoral election, Mayor Jose Torres faced former police chief Lawrence Spagnola. See Heffernan v. City of Paterson, 777 F.3d 147, 149–50 (3d Cir. 2015). Although he was friends with Spagnola and supported him privately, Paterson police detective Jeffrey Heffernan did not campaign for Spagnola, vote in the election, or consider himself politically active. But the day after picking up a Spagnola campaign yard sign at his mother’s request, Heffernan was demoted for his alleged political activities. See id. The Supreme Court will decide if Heffernan, to raise a First Amendment retaliation claim, must show that he actually engaged in constitutionally protected activity, or merely demonstrate that the City of Paterson fired him based on its belief that he engaged in protected activity. Heffernan argues that the First Amendment protects government employees from adverse action that is based upon political expression or association, regardless of the true nature of employees’ activities. See Brief for Petitioner, Jeffrey Heffernan at at 14. But Paterson maintains that the First Amendment protects only the literal exercise of association and speech. See Brief for Respondent, City of Paterson et al. at 8–12. The Court’s decision will impact how public employees engage in political activity, and the amount of litigation surrounding retaliation claims. 

Questions as Framed for the Court by the Parties

Does the First Amendment bar the government from demoting a public employee based on a supervisor’s perception that the employee supports a political candidate?

After twenty years in Paterson, New Jersey's police department, Jeffrey Heffernan was named a detective in 2005. See Heffernan v. City of Paterson, 777 F.3d 147, 149 (3d Cir.

Written by

Edited by

Additional Resources

Submit for publication
0

Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission

Issues

Does a court violate the First Amendment when it considers issues pertaining to teacher employment in a religious organization where the teacher serves both secular and religious functions?

 

Respondent Cheryl Perich taught for five years at Petitioner, Hosanna-Tabor Evangelical Lutheran Church and School (“Hosanna-Tabor”), including four years as a commissioned minister. In 2004, Hosanna-Tabor hired a new teacher to fill Perich’s position after Perich missed several months of teaching due to narcolepsy. When Hosanna-Tabor did not permit Perich to return to her former position, Perich threatened to sue under the Americans with Disabilities Act (“ADA”). Hosanna-Tabor fired Perich, and Perich initiated legal proceedings with the Respondent Equal Employment Opportunity Commission (“EEOC”), alleging that Hosanna-Tabor fired her in retaliation for threatening to sue. Hosanna-Tabor argues that the ministerial exception to the ADA, which prevents employment suits against religious entities by their religious employees, bars Perich's lawsuit because she fulfilled an important religious role. Perich and the EEOC contend that there is no ministerial exception under the anti-retaliation provisions of the ADA, and that the Establishment Clause, freedom of association principles, and Free Exercise Clause do not bar her suit. The United States Court of Appeals for the Sixth Circuit determined that Perich did not fall under the ministerial exception because she taught secular subjects with minimal religious components. The Supreme Court will decide whether the ministerial exception applies to a teacher at a religious school who teaches both secular and religious material.

Questions as Framed for the Court by the Parties

Whether the ministerial exception applies to a teacher at a religious elementary school who teaches the full secular  curriculum,  but also teaches daily religion classes, is a commissioned minister, and regularly leads students in prayer and worship.

Hosanna-Tabor Evangelical Lutheran Church and School (“Hosanna-Tabor”) is a religious school in Redford, Michigan that teaches kindergarten through eighth grade. See EEOC v. Hosanna-Tabor Evangelical Lutheran Church and School, 597 F.3d 769, 772 (6th Cir.

Written by

Edited by

Additional Resources

Submit for publication
0

Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission

Issues

Does a court violate the First Amendment when it considers issues pertaining to teacher employment in a religious organization where the teacher serves both secular and religious functions?

 

Respondent Cheryl Perich taught for five years at Petitioner, Hosanna-Tabor Evangelical Lutheran Church and School (“Hosanna-Tabor”), including four years as a commissioned minister. In 2004, Hosanna-Tabor hired a new teacher to fill Perich’s position after Perich missed several months of teaching due to narcolepsy. When Hosanna-Tabor did not permit Perich to return to her former position, Perich threatened to sue under the Americans with Disabilities Act (“ADA”). Hosanna-Tabor fired Perich, and Perich initiated legal proceedings with the Respondent Equal Employment Opportunity Commission (“EEOC”), alleging that Hosanna-Tabor fired her in retaliation for threatening to sue. Hosanna-Tabor argues that the ministerial exception to the ADA, which prevents employment suits against religious entities by their religious employees, bars Perich's lawsuit because she fulfilled an important religious role. Perich and the EEOC contend that there is no ministerial exception under the anti-retaliation provisions of the  ADA,  and that the Establishment Clause, freedom of association principles, and Free Exercise Clause do not bar her suit. The United States Court of Appeals for the Sixth Circuit determined that Perich did not fall under the ministerial exception because she taught secular subjects with minimal religious components. The Supreme Court will decide whether the ministerial exception applies to a teacher at a religious school who teaches both secular and religious material.

Questions as Framed for the Court by the Parties

Whether the ministerial exception applies to a teacher at a religious elementary school who teaches the full secular  curriculum,  but also teaches daily religion classes, is a commissioned minister, and regularly leads students in prayer and worship.

Hosanna-Tabor Evangelical Lutheran Church and School (“Hosanna-Tabor”) is a religious school in Redford, Michigan that teaches kindergarten through eighth grade. See EEOC v. Hosanna-Tabor Evangelical Lutheran Church and School, 597 F.3d 769, 772 (6th Cir.

Written by

Edited by

Additional Resources

USA Today, Richard W. Garnett: Hosanna-Tabor Case to Test Our Church-State Divide (Apr. 24, 2010)
 
Religion Clause, Howard Friedman: What is at Issue in the Hosanna-Tabor Case? (March 28, 2011)
Submit for publication
0

Lane v. Franks

Issues

  1. Does the First Amendment permit the government to retaliate against a public employee for sworn testimony that was compelled by subpoena and was not a part of the employee’s ordinary work duties?
  2. Does qualified immunity preclude a claim for damages in this action?

Lane is the former director of the Community Intensive Training for Youth Program (“CITY”) at Central Alabama Community College (“CACC”); Steve Franks is the former president of CACC. As director of CITY, Lane conducted an audit and discovered that state representative Susan Schmitz was on CITY’s payroll, but had not come to work at the office or performed any work outside the office for CITY. Lane terminated Schmitz’s employment after she refused to report to work. After Schmitz’s termination at CITY, the FBI investigated her for mail fraud and fraud concerning a program receiving federal funds. Lane was subpoenaed and testified at both of Schmitz’s criminal trials. Lane testified that Schmitz had not been reporting to work at CITY, and was only receiving paychecks. Following Schmitz’s criminal trials, Franks terminated Lane. Lane sued Franks in his official and individual capacities, alleging that Franks violated Lane’s First Amendment rights by terminating Lane in retaliation for testifying against Schmitz. The Eleventh Circuit affirmed the district court’s ruling that because Lane’s speech was made in his official capacity as CITY’s director, he failed to state a claim for retaliation. The Supreme Court’s decision will clarify the scope of the First Amendment as it relates to protecting testifying public employees from retaliation by their employers.

Questions as Framed for the Court by the Parties

  1. Is the government categorically free under the First Amendment to retaliate against a public employee for truthful sworn testimony that was compelled by subpoena and was not a part of the employee’s ordinary job responsibilities?
  2. Does qualified immunity preclude a claim for damages in such an action?

top

Facts

Petitioner Edward Lane is the previous Director of the Community Intensive Training for Youth Program (“CITY”) at Central Alabama Community College (“CACC”), and Respondent Steve Franks is the former president of CACC. See Lane v. Central Alabama Community College, 523 Fed. Appx. 709, 710 (11th Cir.

Written by

Edited by

Additional Resources

top

Submit for publication
0
Subscribe to retaliation