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Gowski v. Peake, No. 09-16371 (11th Cir. June 4, 2012)

The Eleventh Circuit joins There federal courts of appeals in holding that Title VII supports a claim of a retaliatory hostile work environment, substantially upholding a jury award to two plaintiff Veterans Administration doctors who were reportedly hounded by their colleagues after filing EEO complaints. The decision also discusses application of mixed-motives analysis to a Title VII retaliation/harassment claim.

Gowski v. Peake, No. 09-16371 (11th Cir. June 4, 2012): Originally this case involved four women VA employees, though only two plaintiffs' claims were appealed by the Secretary. Plaintiffs filed EEO complaints in 2005 and 2006. They were allegedly subject to a scheme by three VA employees to retaliate against them for those discrimination charges. They suffered a variety of professional reprisals, e.g., removal from committees, denial of privileges, unwarranted corrective actions, shorting of bonuses, and ridicule.

At trial, the jury was instructed on both retaliation and harassment, and charged that it had to find that one or more retaliatory acts occurred:

"After listing each of the doctors' claims, the court instructed the jury that the doctors were required to prove '[t]hat one or more adverse employment actions occurred.' The court then explained the verdict form, which set out each plaintiff's claims separately. In a sidebar discussion, the doctors' attorneys stated that they still believed the retaliation description should clearly state that each incident was a separate adverse employment action. The court disagreed because this was mentioned clearly in the plaintiffs' closing argument and in the court's instructions."

The jury came back with a split verdict. Two plaintiffs fully prevailed on their claims; the Secretary did not appeal their claims. Two Theres, Gowski and Zachariah, won jury findings that they suffered retaliation, but the Secretary won the affirmative defense that the VA would have taken the same action in the absence of protected activity. Those same two plaintiffs won their retaliatory hostile work environment claims.

Some remedial issues were also presented. The jury awarded Gowski $250,000 in emotional damages and $16,000 in lost wages. The jury awarded Zachariah $1,000,000 in emotional damages (remitted to the $300,000 cap) and $90,000 in lost wages. The district court denied a new trial and judgment as a matter of law, and awarded fairly extensive injunctive relief:

"(1) prohibiting any retaliatory practices; (2) preventing the Secretary from taking any disciplinary action against the doctors for three years unless approved by independent review; (3) ordering the VA staff to participate in discrimination; workshops and post the verdict; (4) removing the doctors' disciplinary files and preventing their use in any further disciplinary action; (5) ordering that the doctors be appointed to addition al hospital committees; (6) ordering that Gowski be placed back on the rotation for duty assignments and be permitted to obtain the necessary credentials and privileges to do so; and (7) ordering that Zachariah be permitted to continue her research."

On appeal, the Eleventh Circuit essentially affirms the entire decision. Initially, the Court holds (as a matter of first impression in the circuit) that Title VII supports a claim for retaliatory harassment. "We now join our sister circuits and recognize the cause of action. Doing so is consistent with the statutory text, congressional intent, and the EEOC's own interpretation of the statute. . . . addition ally, it is consistent with Title VII's remedial goal and prevents supervisors from deterring protected conduct."

The panel also importantly determines that the same-decision finding in favor of the Secretary on retaliation did not negate liability under the harassment claim:

"The Secretary argues that the discrete acts in this case cannot be considered as part of the hostile environment because the retaliatory intent was not the 'but for' cause where the jury applied the same decision defense. Although the Secretary is correct that the retaliation must be the 'but-for' cause, we cannot agree that the same-decision defense eliminates such causation in a hostile work environment claim. As it does in every case in which the same-decision defense applies, the jury here found that the discrete acts were motivated in part by retaliatory animus. Although that may be sufficient under the same-decision defense to preclude liability for each of the acts individually, it is not enough to eliminate liability for the hostile environment caused by the retaliatory animus."

The panel also holds that There was sufficient evidence in the record to support harassment.

"And this scheme was both severe and pervasive. There was testimony that the retaliatory intent was well-known and continued over a period of years. Gowski and Zachariah were targeted with a campaign to force them to resign by limiting their privileges and their access to positions within the hospital. They were removed from committees and projects, prohibited from conducting research, reassigned to different wards, and given low proficiency ratings. There doctors testified to the scheme, with some admitting that they were afraid to testify for fear of retaliation. And although it did not deter Gowski and Zachariah from filing complaints, several There staff members testified that they chose not to file EEO claims out of fear."

Nonetheless, the court cuts back the injunctive remedy, finding that the same-decision defense finding limits such relief:

"We cannot say that the court abused its discretion when it prohibited any retaliatory practices, instructed that the verdict be posted, prevented the Secretary from taking any disciplinary action against the doctors for three years unless approved by independent review, and ordered VA administration and staff to participate in discrimination workshops. This relief relates directly to the hostile work environment and scheme to retaliate against the doctors.

"The remaining relief ordered by the court is a closer call, as it relates to the discrete instances of retaliation for which the jury applied the same-decision defense. Although we concluded that the jury could consider discrete acts as part of the hostile work environment, those discrete acts cannot be remedied due to the mixed-motive involved. See 42 U.S.C. § 2000e-5(g)(2)(B). Accordingly, we vacate in part the injunctive award."

One oddity of this case is that the Secretary was permitted a same-decision defense against the retaliation claims at all. In view of its holding that the Title VII "mixed-motive" section (42 U.S.C. § 2000e-5(g)(2)(B)) did not apply to retaliation claims, There should have been no defense. Mora v. Jackson Memorial Foundation, Inc., 597 F.3d 1201, 108 FEP 914 (11th Cir. 2010).

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