By Kathleen Kapusta, J.D. Despite its acknowledgment that the EEOC’s evidence was “quite strong,” a federal court in California nonetheless found it insufficient to establish as a matter of law that an employee’s filing of an EEOC charge against a bakery was the “but-for” cause of the owner’s filing of a defamation action against her. Accordingly, it denied the agency’s partial motion for summary judgment on the retaliation claim (EEOC v. Peters’ Bakery, April 21, 2016, Freeman, B.). Defamation suit. Alleging that the bakery discriminated against her based on race and national origin and also retaliated against her, the Hispanic employee filed an EEOC charge in September 2011. On November 3, the EEOC issued a Notice of Charge of Discrimination informing the bakery of the charges. In April 2012, the bakery’s owner filed a defamation action against the employee in a California court, alleging defamation occurring on November 3, 2011. The EEOC subsequently sued the bakery, asserting claims under Title VII, including that the bakery retaliated against the employee after she filed the charge by, among other things, subjecting her to the defamation action. It sought partial summary judgment with respect to this claim. While to the court, it appeared “self-evident that the filing of a defamation lawsuit against an employee could dissuade a reasonable worker in that employee’s shoes from making or supporting a charge of discrimination,” the owner argued that the filing of his defamation action did not dissuade the employee from pursuing her charge and, in fact, three of her coworkers showed up at her defamation hearing to support her. Finding this argument unpersuasive, the court pointed out that the standard is objective, and looks to whether a reasonable employee may be dissuaded from pursuing or supporting such charges. Causal link? As to whether there was a causal link between the employer’s conduct and the protected activity, the agency argued that only one inference could be drawn from the evidence: The owner filed the defamation action because the employee filed an EEOC charge against the bakery. The agency cited the owner’s deposition testimony where, in response to being asked what he thought was defamation of character, he answered: “The things she said on that statement about me being racist. And I’m not a racist. She said, she claims that I’m Portuguese. I am not Portuguese. I am Portuguese descent, but I’m an American.” He then clarified that the referenced “statement” was the EEOC charge. Further, his complaint stated that the defamation occurred on November 3, 2011, the date of the agency’s notice of the charge. But what about the Internet statements? In response, the bakery accused the EEOC of excluding critical deposition testimony, in which the owner stated that the employee published the defamatory statements on the Internet and that his girlfriend had shown them to him. While the agency argued that the owner’s statements were inadmissible hearsay, the court disagreed. His statements were not being presented to show that the employee actually published the statements on the Internet, but rather to show he believed that to be the case. And while the bakery’s failure to submit a copy of the postings undermined the owner’s version of events that went to the weight of the evidence, not its admissibility. Turning to the merits, the court found conflicting evidence as to the but-for cause of the owner’s lawsuit. While he referenced the EEOC charge in his deposition testimony, stated in an affidavit that the employee made allegations that weren’t true in the EEOC charge, and further testified in his deposition that “There was never a bad comment on—posted on the Internet, so it was dropped at that point,” the court reasoned that a reasonable jury could, if it believed the owner, find he filed the defamation action because he believed she had called him a racist on the Internet and not because she filed an EEOC charge. Evidence in support of such a finding included the owner’ deposition testimony that statements about him being racist had been published on the Internet and found by his girlfriend, his declaration statements that he filed the defamation action because he was upset she called him a racist on the Internet, and the lapse of approximately five and a half months between the date he was informed of the charge and the date he filed the defamation action. While the EEOC argued that no reasonable jury could find that the defamation action was motivated by statements published to the Internet in light of the owner’s testimony that “[t]here was never a bad comment on—posted on the Internet,” this stated only that the employee never posted a bad comment about the bakery and did not actually conflict with the owner’s assertion that he believed she had posted negative comments on the Internet about him. Thus, the EEOC’s motion for summary judgment was denied.
Interested in submitting an article?
Submit your information to us today!Learn More