Labor & Employment Law Daily Virginia deputy commonwealth attorney can’t bring pure retaliation claim under the Equal Protection Clause
Friday, August 14, 2020

Virginia deputy commonwealth attorney can’t bring pure retaliation claim under the Equal Protection Clause

By Wayne D. Garris Jr., J.D.

The former employee claimed that her supervisor overreacted to her question about a written reprimand in retaliation for her complaints of sex discrimination two months prior.

Affirming a federal district court’s dismissal of a former Deputy Commonwealth Attorney’s retaliation claim, the Fourth Circuit held that a pure retaliation claim is not cognizable under the Equal Protection Clause of the Fourteenth Amendment. After she was terminated, the employee filed suit solely under §1983 alleging that she was terminated for her complaining about sex discrimination within her office. The court, relying on its own precedent and the majority of circuit courts, found that the employee’s retaliation claim would have likely survived dismissal under Title VII, but must be dismissed because the Equal Protection Clause does not provide for stand alone claims of retaliation. Despite its similarities to Title VII, the Equal Protection Clause does not contain a separate antiretaliation provision as Title VII does. To incorporate an antiretaliation clause into the Equal Protection Clause would go against precedent and principles of statutory construction (Wilcox v. Lyons, August 11, 2020, Rushing, A.).

The employee was a Deputy Commonwealth Attorney for Carroll County, Virginia. After an incident in which one of her male colleagues struck her on the arm with a closed fist and made a derogatory comment about women, the employee reported the incident to the Commonwealth Attorney. The employee met with the Commonwealth Attorney about the incident and expressed her belief that the employer promoted, or at least tolerated, discrimination against women. The employee alleged the Commonwealth Attorney apologized but did not take any corrective action against the male colleague.

Termination. The employee was late or missed work several days during January 2016. The Commonwealth Attorney met with her and told he that she had used too much leave, that she was in violation of “state compensation board policy,” and issued her a written reprimand to sign. The employee asked if she could read the reprimand first and requested a copy of the policy that she allegedly violated. In response, the Commonwealth Attorney “raised his voice” and fired the employee.

Procedural history. The employee filed suit against the Commonwealth Attorney, her male colleague, and the county alleging sex discrimination, hostile work environment, and retaliation in violation of Equal Protection Clause, a due process violation, and common law battery. The district court dismissed all of her claims but granted leave to amend her sex discrimination, retaliation, and due process claims. The employee moved for reconsideration of her retaliation claim, which the district court denied finding that she failed to make a prima facie case of retaliation. The employee appealed.

Not a Title VII claim. The district court assumed for the sake of argument that the employee’s retaliation claim was cognizable under Title VII but found that there was no causal connection between the employee’s protected activity and her termination. The court disagreed noting that the Commonwealth Attorney’s “disproportionate response” to a minor infraction combined with the two-month span between the employee’s complaint and her termination were sufficient to show causation at the motion to dismiss stage if the employee’s claim was brought under Title VII. Since the employee’s retaliation claim was solely an Equal Protection claim, the court had to determine whether such a claim was cognizable.

Equal Protection. The court explained that it had previously held in Edwards v. City of Goldsboro that “a pure or generic retaliation claim…simply does not implicate the Equal Protection Clause. Instead, §1983 retaliation claims typically are brought under the First Amendment. The employee argued that because of the substance of her complaints, sex discrimination and harassment, her claim of retaliation should be cognizable under the Equal Protection Clause. The court disagreed.

The court explained that the Supreme Court subjected categories such as race and gender to strict scrutiny under the Equal Protection Clause “because of their roots in our Nation’s ‘long and unfortunate history of sex discrimination.’” Retaliation, on other hand, is based on an employee’s complaints of discrimination, not her protected status. For example, a male employee who was fired for complaining about his employer’s treatment of female employees would have been fired based on his complaints, not his gender. Or, as the court explained, if the employee alleged that the retaliatory behavior was somehow connected to her gender, she could have brought her claim under the Equal Protection Clause. The employee made no such allegation, and the court declined to expand the coverage of the Equal Protection Clause.

Vega. The court also relied on the fact that the majority of circuit courts have held that the Equal Protection Clause does not recognize a stand-alone retaliation claim. The employee argued that the court should adopt the Second Circuit’s holding in Vega v. Hempstead Union Free School District in which that court did find that a retaliation claim could be brought under the equal protection clause. The court found Vega unpersuasive.

The Vega court provided two reasons for its decision: first, it found that an equal protection claim largely follows Title VII claim, and second, it concluded that retaliation is a form of discrimination.

Title VII differences. The court acknowledged that it applies a similar analysis to Title VII and Equal Protection claims, but the two laws are not identical. For example, disparate impact claims cannot be brought under the Equal Protection Clause. Additionally, Title VII contains a separate antiretaliation provision which has substantial differences from Title VII’s antidiscrimination provision. As the court explained, the retaliation provision protects employees for “what they do” not who they are. Such language could not be read into the Equal Protection clause.

Retaliation as a form of discrimination. The court also rejected Vega’s reasoning that retaliation is a form of discrimination. The Vega court relied on a Supreme Court decision, Jackson v. Birmingham Board of Education, in which the court found that Title IX’s antidiscrimination provision incorporated claims of retaliation. First, the court rejected the notion that Jackson required a court to find that any statute that prohibits discrimination also prohibits retaliation. Furthermore, the court noted, the Vega court’s interpretation of Jackson was “difficult to square” with Title VII, which contains an antidiscrimination provision and a separate express antiretaliation provision. If a prohibition on discrimination always encompassed retaliation, Title VII’s antiretaliation provision would be “mere surplusage” and “flies in the face of commonly applied canons of statutory construction.”

Dismissal affirmed. The court reiterated that there are other avenues for the employee, and other potential plaintiffs, to raise retaliation claims. However, because the claim at issue was brought solely under the Equal Protection Clause, the court had to affirm its dismissal.

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