Two decisions issued today demonstrate the challenge employers face in managing claims of retaliation. If the summary judgment records in these cases are to be believed, the decision-makers were all-too-eager to announce their intention to get even with employees who made complaints of discrimination.
Pye v. Nu Aire, Inc., No. 10-2243 (8th Cir. June 17, 2011): A newly-hired African-American employee claims that he overheard the company's payroll administrator (named Holladay) mutter the words "n*****r goon" under her breath, in response to his request for help on a form. He filed a written complaint with the company. The complaint was investigated by the Director of Human Resources (named Johnson), but Pye reported that his interview with Johnson was purely adversarial:
"Accepting Pye's rendition of what transpired, Johnson began by telling him that she did not believe his allegation that Holladay had referred to him as a 'n[******]r goon,' and stated that she had known Holladay for many years, and that Holladay was not a racist. . . . Johnson asked him, with disdain, what he wanted to make the problem go away. Pye responded that he wanted to be helped or compensated for what had occurred. Johnson continued to ask him what he wanted to make the problem go away. Pye turned to McKnight and said he had been requesting to move into different jobs in the company, at which point Johnson asked him if he wanted a position with more money, more benefits, or perhaps with a company car. Pye asked what was usually done in this type of situation, and stated that he wanted the matter handled in the usual manner."
Johnson immediately reported back to a company Vice President (Peters):
"After the meeting, Johnson sent Peters an email stating that Pye 'was shaking us down' -- that he wanted a promotion, money, and a company car 'for his trouble.' She also wrote that Pye had said that 'he doesn't want to take it to the next step because a multi-million dollar company like NuAire would go out of business.' NuAire's witnesses testified that they believed that with this language, Pye was referencing the filing of a lawsuit. Johnson suggested to Peters that a lawyer be consulted to see if NuAire could fire Pye for making threats. Peters responded that he did not need to consult a lawyer, and directed McKnight to fire Pye when Pye next returned to work on Monday, November 19, 2007."
When Pye asked why he'd been terminated, "Johnson told him that he was terminated for attempting to obtain a promotion and/or money and a company car through coercion or intimidation." In the course of litigation, the employer insisted that the decision was based on poor performance.
The Eighth Circuit reverses summary judgment on Pye's Title VII and Minnesota Human Rights Act retaliation claim. It finds that the above facts constituted direct evidence that Pye's complaints of discrimination - and Johnson's possible ploy to trap Pye into making a monetary demand - led to his termination:
"There is no evidence that NuAire had any concerns regarding Pye's performance before he engaged in protected conduct. Indeed, Peters acknowledged that he had no information regarding Pye's work performance when he made the decision to terminate him. Further, viewed in the light most favorable to Pye, the evidence shows that his termination was a direct result of his complaint of discrimination and his suggestions of remedies, prompted by the investigator's questions."
Geleta v. Gray, No. 10-7026 (D.C. Cir. June 17, 2011): This claim was also brought under Title VII. Geleta, a project director, witnessed what he perceived as a racial incident during a meeting, targeting an employee named Spriggs, and in December 2004 he furnished a written statement corroborating the victim's version of events. His bosses -- Department Director Knisley and Director of Policy and Planning Thomas -- learned about the statement in January 2005.
In February 2005, Thomas told Geleta that he was being transferred into a new position that "had significantly narrower and less important responsibilities than his previous position." According to the summary judgment record, "he went from overseeing a broad-based mental health unification project . . . in which he supervised twenty employees to a desk job . . . where he supervised no one and spent his time clearing a bureaucratic backlog."
According to Geleta's testimony, when he "asked Thomas in February 2005 why he needed to find a new position, she told him to make up a reason. . . . When Geleta asked what she meant, Thomas replied, '[I]t's not performance, you know, it's just-whatever reason you feel-whatever you feel comfortable with.'"
Another employee in the agency (Curran) testified to a remark made by Knisley:
"According to Curran, Thomas told her in early 2005 that Thomas had received instructions from Knisley to fire Geleta. Curran further recounts that when Knisley learned Geleta had instead been transferred to OA she called Thomas and Curran into her office and angrily upbraided them. Curran says Knisley warned that not firing Geleta was 'a grave mistake' and exclaimed, '[D]on't you know what he's done?'"
The D.C. Circuit reverses summary judgment, holding that the Thomas and Knisley statements (along with other evidence) cast doubt on the reason for Geleta's transfer and made it more probable that the real reason was retaliation.