Labor & Employment Law Daily Researcher wins Title VII retaliation claim based on negative reference to future employer
Monday, November 12, 2018

Researcher wins Title VII retaliation claim based on negative reference to future employer

By Lorene D. Park, J.D.

Granting summary judgment for a medical researcher in part on his claim that the university for which he worked retaliated against him for a prior discrimination suit, a federal district court in Nevada found in his favor concerning a negative reference undisputedly given by his former supervisor to what would be his future employer. The court explained that under Ninth Circuit precedent, retaliatory dissemination of a negative employment reference violates Title VII, even if the prospective employer hires the subject of the reference. The employee’s motion was denied as to the former supervisor’s actions in barring his access to the lab and discarding his supplies without consent. And the court granted judgment on the pleadings and partial summary judgment to the university with respect to the employee’s defamation claim concerning communications between his former supervisor and the supervisor’s staff, which did not constitute publication to a third party (Wang v. Nevada System of Higher Education, November 6, 2018, Du, M.).

Settlement of prior discrimination suit. The employee was “Research Assistant Professor” in the Department of Pharmacology at the University of Nevada Reno School of Medicine (UNR Med), and his position was funded by a grant from the American Heart Association. After he received a discharge notice in June 2012, he filed a race discrimination charge with the EEOC and subsequently filed suit in state court. From that point until he settled the charges and the lawsuit with the defendant, he was unable to access his lab equipment and supplies at UNR Med.

Former supervisor gives negative reference, discards supplies. Despite the settlement, the employee’s former supervisor, who heads UNR Med, allegedly retaliated against him by: (1) making disparaging comments about the employee and unfavorable references to the fiscal official at UNR and the hiring official at UC Davis in June 2013; (2) disclosing the state court lawsuit as a negative reference to the same hiring official; (3) depriving him of funding from the grant; (4) refusing to transfer his lab products and supplies to UC Davis and discarding them in October 15, 2013, without his consent; and (5) threatening him and damaging his reputation on the same day be prohibiting him from accessing the UNR campus.

The employee filed this Title VII retaliation suit based on those allegations and the defendant moved for judgment on the pleadings and for partial summary judgment.

Defamation claims. Granting the defendant’s motions in part, the court first concluded that the supervisor’s alleged defamatory statements about him to the UNR fiscal official could not support a defamation claim because the communications were between persons who both worked for UNR so were not “published to a third person.” Defamation claims based on communications between the supervisor and his subordinates concerning the employee failed for the same reason.

Retaliation claims. On the other hand, the employee could proceed on his retaliation claim arising from his being barred from UNR. The defendant’s conduct in barring him from retrieving lab supplies important to his past and future research under the grant arose from the employment relationship, and a rational jury could find that this would dissuade a reasonable worker from making or supporting a charge of discrimination. Consequently, the court found a genuine dispute on whether this was an adverse employment action. And though the defendant argued it had the discretion and authority to deny access, it did not identify a legitimate, nonretaliatory reason to do so, and a jury could find it was retaliation for his discrimination charge and lawsuit.

Judgment for employee on negative reference. Also moving for summary judgment, the employee argued that the evidence proved that his former supervisor at UNR Med gave unfavorable references to the hiring official at UC Davis in order to prevent the employee from securing grant-dependent employment. The defendant did not dispute the hearing transcript showing the conversation took place or whether the supervisor’s communications constituted a negative reference. Instead, it argued that the communication had no effect on the employee’s hiring by UC Davis.

Granting the employee’s motion on this retaliation claim, the court explained that the Ninth Circuit has rejected the defendant’s position and has held that “retaliatory dissemination of a negative employment reference violates Title VII, even if the negative reference does not affect the prospective employer’s decision not to hire the victim of the discriminatory action.” Also finding that the employee proved a causal link between the negative reference and his prior lawsuit (the reference was about the prior lawsuit), the court held that he made out a prima facie case. And because the defendant did not provide a nonretaliatory reason for the negative reference, the employee was entitled to judgment on this retaliation claim.

Triable question on the discarding of lab supplies. On the other hand, the employee’s motion was denied on his claim that the defendant retaliated for his discrimination charge and suit by refusing to transfer lab supplies to UC Davis and discarding them without his consent. While he argued that the supplies belonged to him, he failed to prove ownership as a matter of law. The court noted that the settlement agreement and the grant award agreement (which funded the purchase of supplies) do not expressly contemplate ownership or transfer of lab supplies. Nor was there evidence of an industry custom or employment policy on the issue, which could therefore not be decided on summary judgment.

The employee’s motion was also denied on the retaliation claim related to limiting his access to the lab and barring him from retrieving supplies. In the court’s view, the defendant raised a triable issue on whether its security concerns constituted a legitimate, nonretaliatory reason for barring someone who no longer worked for UNR Med from accessing the laboratory.

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