Mistreatment based on retaliation for protected conduct is actionable whether or not the mistreatment rises to the level of a tangible employment action, but only if the mistreatment “well might have dissuaded a reasonable work from making or supporting a charge of discrimination.”
A federal district court erred when it applied the Eleventh Circuit’s outlier decision in Gowski v. Peake and required an employee to show that alleged retaliation was sufficiently pervasive to alter the conditions of her employment, ruled the appeals court. The proper standard in a retaliation case is set forth in the Supreme Court’s ruling in Burlington Northern & Santa Fe Railway Co. v. White, which concluded that an adverse action is material if it “well might have dissuade[d] a reasonable worker from making or supporting a charge of discrimination,” the appeals court said. In this instance, it determined that the employee made that showing. Judge Tjoflat filed a separate opinion concurring in part and dissenting in part (Monaghan v. Worldpay US, Inc., April 2, 2020, per curiam).
The employee, a white woman over 40 years old, worked as an executive assistant. Her employment was terminated during the 90-day probationary period applicable to new employees. For the first two months of her employment, her immediate supervisor was an African-American woman. She was later replaced by a white woman over 50 years of age.
Discriminatory comments. According to the employee, about a week after she began working, the black supervisor made a number of race- and age-based comments to her. The supervisor told the employee that she needed to “suntan” to work in the executive suite, that she was “too old” to fit with Worldpay, and that she was “over the hill.” The supervisor told another employee that “this little white woman is giving me drama over here,” and that Worldpay “did not need another older executive assistant around here.”
The employee verbally reported the supervisor’s comments to the executives who she supported, but not to human resources. She claimed that the executives told her to avoid the supervisor, or stop reporting such conduct because the supervisor was a black female and Worldpay did not want to get sued.
Berated by supervisor. The supervisor called the employee into a meeting and berated her for about 45 minutes regarding her complaints to the executives. She told the employee not to have any contact with the executives to whom she reported unless it was directly related to work on a specific task, that she would be blackballed, that her days were numbered, and that she “better watch it” because the supervisor and her boyfriend knew where she lived.
About two weeks later, the supervisor allegedly told the employee she was training another person “to take her job, You better watch it, white girl.” The employee again complained to an executive that the supervisor was making racist remarks, but the complaints fell on deaf ears. On another occasion, the supervisor asked the employee how old she was. The supervisor remarked that the only person she knew who ate a banana sandwich was her own mother.
After an offsite meeting, the supervisor told the employee that she would be resigning. During the conversation, the supervisor said “you white girls kill me.” Again, the employee was told to ignore the comments.
Discharged. A new supervisor took over, who began to ignore the employee. Ultimately, the employer terminated the employee, asserting that it did so due to “lack of confidence, lack of trust, and lack of teamwork.” According to the employee, the new supervisor told her that she was being discharged for complaining to the executives, that they were tired of her “complaining,” and that she did not “fit in with” Worldpay. According to the employee, the executive who escorted her out of the building told her that “today is for Tammi.” The employee understood this to mean that Worldpay was retaliating against her by firing her because the black supervisor had been discharged.
The employee filed suit, asserting a Title VII retaliation claim, among other claims. The district court granted summary judgment in favor of the employer on the retaliation claim under Title VII, and the employee appealed.
Discrimination vs. retaliation. Under Title VII, mistreatment is actionable discrimination only if it reaches a sufficient level of substantiality. Trivial slights are not actionable. Some events are substantial enough standing alone to be actionable—referred to as “tangible” or adverse” employment actions. These consist of things that affect continued employment or pay—terminations, demotions, suspensions without pay, and pay raises or cuts. Mistreatment based on race or other prohibited characteristics is actionable even if the treatment does not rise to the level of a tangible employment action, but only if the treatment is “sufficiently severe or pervasive” that it can be said to alter the terms, conditions, or privileges of employment.
Mistreatment based on retaliation for protected conduct, however, is actionable whether or not the mistreatment rises to the level of a tangible employment action, but only if the mistreatment “well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.”
“Well might have dissuaded.” The Eleventh Circuit determined that the district court improperly applied the standard in the outlier case of Gowski v. Peake. However, in its 2008 ruling in Crawford v. Carroll, the circuit court recognized that the Supreme Court’s 2006 decision in Burlington Northern & Santa Fe Railway Co. v. White provides that, in the context of a Title VII retaliation claim, a materially adverse action “means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” Here, the appeals court agreed with the employee (and with the EEOC as amicus curiae)and reaffirmed that the standard applicable to all Title VII retaliation claims is Burlington Northern—the “well might have dissuaded” standard.
Burlington Northern standard met. The remaining question was whether the evidence satisfied Burlington Northern. The appeals court concluded that it did. According to the employee, the black supervisor told her that she had “cut her own throat,” that she was “f#*ked,” that she would be blackballed, and that her days at Worldpay were numbered. She also threatened the employee and ended a meeting by pounding on a table and saying “how dare you make complaints against me.” On another occasion, the supervisor told the employee that she was training another person to “take your job,” and again threatened her. Those statements “well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.”
In addition, the employer discharged the employee, which easily satisfies the “well might have dissuaded” standard. The employee was told that she was being fired for “complaining.” Further, an executive escorting her from the building commented, “I need you to understand this is for Tammi.” This statement by an executive was additional evidence supporting the inference that the termination was in retaliation for complaints about the black supervisor.
Accordingly, the district court’s grant of summary judgment on the employee’s Title VII retaliation claim was reversed and the matter remanded for a jury trial on that claim.
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