Is This Retaliation?

Is This Retaliation?

One question we face a lot in litigating retaliation claims is whether an employee has suffered “an adverse employment action.”  While deciding what kinds of things can be adverse employment actions seems like it should be easy, courts still struggle with it.

In a recent Eleventh Circuit case, Smith v. City of Pelham, the Eleventh Circuit explained how a supervisor’s action could be retaliatory—even when the employee did not initially know about it.

Here, Jennifer Smith filed a sex discrimination complaint against her supervisor. The City told the supervisor of the sex discrimination complaint and reminded him that the supervisor was not to retaliate against Smith.

Alas, that warning fell on deaf ears. Within a week, the supervisor tasked another employee with conducting a forensic search of Smith’s computer. The search turned up an iPhone backup on her work computer. In the photos in this backup, there were nude photographs. The investigation also showed that Smith had used her work computer during working hours for things related to a second job.

The City fired Smith because the nude photos in the iPhone backup on her work computer were considered “conduct unbecoming.”

Although Smith had no idea that the supervisor ordered this forensic search of her computer after filing her complaint, Smith knew that she had been fired within a month of filing her sex discrimination complaint. She sued for retaliation.

The Supreme Court tells us that retaliation exists when an employee suffers a materially adverse employment action. Retaliation is material if it might have dissuaded a reasonable worker from making or supporting a charge of discrimination.

The district court dismissed Smith’s retaliation claim. It reasoned that the forensic search could not be a materially adverse action because Smith did not know the supervisor had someone conduct the forensic investigation. The district court noted, “a reasonable worker could not be dissuaded from making a charge of discrimination due to an investigation of which she had no knowledge.”

Fortunately, the Eleventh Circuit recognized this for the illogical nonsense it is. It pointed out that to hold that an action cannot be adverse if the employee is unaware of that action is without legal support.

Smith was fired because of that forensic investigation—instigated by her supervisor immediately following her sex discrimination complaint. That search then caused her to be fired—and no one could dispute that the termination is an adverse employment action.

This outcome should have been common sense. Sadly, it was not. However, the Eleventh Circuit set the record straight here. It found that even though the search might have resulted in the discovery of some employee misconduct, that did not excuse that the investigation was itself retaliatory.

Retaliation continues to occur in all forms, shapes, and flavors. Most courts recognize it when they see it. Here, the Court of Appeals had to catch the district court’s error and set the record straight.

Top Tips For Employee Complaints

Top Tips For Employee Complaints

There is an art to making a persuasive complaint.  As an employee, if you need to file a complaint with your employer, keep in mind the things you should and should not do.

Focus on the goal of your complaint. Your goal should be to make sure your employer can quickly review your complaint, understand what you are complaining about, know how to begin its investigation and know what an ideal resolution would look like to you.

To accomplish this goal, do the following:

  • Make it factual.  Remove all emotion from your recitation of events.
  • Make it short and succinct.  Give the “30,000 view” of events and do not dwell too deeply in the details. There will be time to get into the details later.  You need the employer to be able to immediately understand the basis of your complaint.
  • Make it chronological.  Tell your story in chronological order.  It makes it so much easier for the person reading your complaint to follow through what happened if you do not bounce back and forth.
  • Make it specific.  Use specific names and job titles, not just job titles when you refer to people.  Do not use abbreviations.  You cannot assume the person reading your complaint knows what those abbreviations stand for. Give specific dates of incidents when possible.  Give specific example of incidents.  Instead of using general language such as “I was harassed,” say something like “On April 25, he grabbed me in the hall and leaned down and kissed my neck in front of two of my co-workers.”  Specific details will always be far more persuasive than general allegations.
  • Make sure to use legal buzz words.  If you think you have been discriminated against because of your race, say so.  If you think you are being sexually harassed, say so.  If you think you are being paid less because you are a woman, say so.  Too many people dance around using the words “discrimination” or “retaliation” because of a fear of retaliation. Paradoxically, it is in using those specific words that you actually get the most protection from retaliation.
  • Make sure to consider who will receive the complaint.  Certainly, Human Resources should receive your complaint.  However, you may consider also sending a copy directly to the person about whom you are complaining.  This can be tricky.  However, it is often important to show that the wrongdoer knew of your complaint if you are later retaliated against.  While the fear of retaliation is real, paradoxically, sending a copy directly to the person you are complaining about can actually get you more protection from retaliation.
  • Make sure to consider getting help.  Finally, do not be afraid to get help.  As a lawyer who represents individuals in employment disputes, I can walk you through the process of filing an internal complaint. I can even draft it for you.  Or, I can draft a letter to go straight to your company’s legal department to set out your complaint.

You do not have to go it alone.  If you feel like you are in a challenging situation at work and need some advice, we can help.