As we have previously noted, employees are filing more and more retaliation cases. In 1997, the Equal Employment Opportunity Commission (EEOC) accepted 16,394 charges alleging retaliation under Title VII of the Civil Rights Act of 1964, but that number swelled to 33,082 in 2016.
The steady increase in retaliation claims is likely due to a number of factors, including the fact that an employee doesn’t have to prove that she was discriminated against or harassed to proceed, and potentially succeed, on a retaliation claim.
Strangely enough, the following case, like the retaliation case we previously covered, was also filed against the U.S. Postal Service (USPS). However, the USPS wasn’t as successful this time, and it learned that losing a retaliation lawsuit can lead to significant damages being awarded to the employee.
Did EEOC Charge Precipitate Discipline?
In 2000, “Nancy,” an Asian woman who had been a USPS employee since 1995, was promoted to postal police officer (PPO). Before May 2011, Nancy hadn’t received any disciplinary action as a PPO. However, that changed after she filed a charge of discrimination with the EEOC in May 2011.
On May 23, 2011, USPS Captain “Tony” learned that Nancy had filed a charge of discrimination alleging race discrimination. Nancy’s EEOC charge was based on Tony’s refusal to allow her to return to work after a workplace injury even though she had been cleared to return to work by her physician.
In addition, when she reported to work, she found that her chair had been replaced with a broken stool. When she asked for permission to use a nearby chair that wasn’t broken, Tony denied her request and told her that if she didn’t like it, she could go home. As a result, she left and didn’t report to work the following day.
Nancy was informed that her absences would be considered “sick leave.” However, even though her absences on May 25 and 26 and an earlier May 21 absence had been previously approved as sick leave, Tony unilaterally and retroactively revoked the approvals on May 26 without explanation. Consequently, Nancy was issued a 7-day suspension on June 24 for leaving her assigned post.
Nancy filed another EEOC charge in January 2012 alleging race discrimination and retaliation. In August, she left her loaded service weapon in her personal locker rather than placing it in a weapon locker in the weapon room as required. As a result, she was issued a letter of warning by a USPS. She then filed yet another charge of discrimination with the EEOC in September alleging that the August letter of warning was unlawful retaliation for her previous EEOC charges. A short time later, she was disciplined again.
In September, Nancy was issued a letter of warning in lieu of a 14-day suspension because she allegedly left the key to the weapon locker in the locker on four different occasions and later left her keys dangling from the keyhole on the weapon room door at the end of her shift.
She was told to file an incident report regarding the key incident, but she refused, and she received another disciplinary notice based on the dangling keys and her failure to file the required incident report.
Round 4?
The cycle continued. In December 2012, Nancy filed yet another EEOC charge of discrimination, this time alleging that she was improperly removed from the acting sergeant’s list in October 2012. In June 2013, she reported to a USPS facility in Brockton that wasn’t secure because of a fire earlier in the day. When she arrived at the site, she was instructed to stay outside her vehicle and to walk around her assigned area to keep the area secure. However, just a few hours later, two different USPS workers spotted her in her vehicle, apparently asleep.
As a result of that incident, Nancy was suspended pending an investigation, which was concluded on July 1. More than 2 months later, on September 9, she was fired because of the Brockton incident. The discharge notice specified that her June 2011 suspension, August 2012 letter of warning, and September 2012 suspension all factored into the decision to terminate her.
On November 19, 2013, Nancy filed her fifth and final charge with the EEOC, alleging her termination was based on unlawful race discrimination and retaliation for her previous charges. Ultimately, she filed suit against the USPS in Massachusetts federal court.
Instead of being tried before a jury, the case was adjudicated in a bench trial, which means a judge heard all the evidence and rendered the final decision. The verdict? The judge found in favor of Nancy on her retaliation claim.
Coffee and Cold Water? Not for Nancy!
Although the judge ultimately concluded that Nancy’s termination wasn’t based on race discrimination, she determined that there was ample evidence to establish that Nancy was terminated because she filed charges of discrimination with the EEOC.
The court agreed with the USPS that it had a legitimate reason to discipline Nancy after she failed to secure the Brockton facility as directed. To succeed on her retaliation claim, Nancy had to establish that her failure to follow instructions in Brockton was a pretext, or smokescreen, for retaliation.
Nancy was able to provide evidence that white male PPOs who also disregarded instructions and were caught sleeping on the job weren’t subjected to the same level of discipline. The white male workers she cited had been found repeatedly sleeping on the job as far back as the mid-1980s and continued to be caught sleeping from time to time right up until their retirement in 2005 and 2007.
The USPS argued that the workers weren’t proper comparators because their incidents were largely in the past and they had different supervisors than Nancy. However, the court noted that neither of the PPOs received any discipline and instead were told to get some coffee and splash cold water on their faces. Accordingly, the court concluded that the level of discipline imposed on Nancy was far more severe than the disciplinary action imposed on others for the same infraction.
The USPS then tried to attribute the difference in discipline to the fact that the two male PPOs had no prior discipline in their files, arguing that Nancy deserved a more serious level of discipline because she had been disciplined in June 2011 and again in August and September 2012. The judge didn’t buy that argument, either. She looked at the bases for the discipline and found that two of the three disciplinary decisions were retaliatory.
The judge determined that the suspension in June 2011 was retaliatory because Tony had unilaterally and retroactively revoked Nancy’s approved leave within 3 days of learning that she had filed a charge of discrimination.
The judge found that the August 2012 discipline wasn’t retaliatory but concluded that the September 2012 discipline—related to Nancy’s misplacement of her keys and her failure to file the incident report—was more severe than discipline others received for the same policy violation and therefore was also retaliatory.
The judge concluded that there were clear retaliatory motives for two of the disciplinary actions on which Nancy’s termination was based. The court also concluded that the decision to terminate Nancy was motivated by her previous protected conduct in filing charges of discrimination with the EEOC.
A Costly Mistake for USPS
As if being found liable for retaliation wasn’t bad enough, the news got worse for the USPS. The judge ordered the USPS to pay Nancy $223,164 in lost compensation plus $25,000 in emotional distress damages. However, the judge didn’t stop there: She also ordered that Nancy be reinstated to a window clerk position at the USPS.
The judge could have reinstated Nancy to a PPO position, but she concluded that would be inappropriate because of the hostility between Nancy and management. Because Nancy had previously worked as a window clerk, the judge concluded that reinstatement to that position would be appropriate. Anderson v. Brennan (D. Mass., 2017).
Takeaways
This is a trial court decision, and perhaps the USPS will appeal the decision to the 1st Circuit. Nonetheless, the judge’s decision serves as a valuable lesson for employers. Specifically, it’s a reminder that even when you are disciplining an employee for what would obviously be a legitimate nondiscriminatory or nonretaliatory reason, you must examine the discipline you imposed on similarly situated employees for similar misconduct or policy violations in the past. Failure to treat your employees consistently can be evidence that your legitimate reason for an adverse action was a pretext for illegal discrimination or retaliation.
The court’s decision also highlights the high cost of making a mistake when you discipline or terminate an employee. As was the case here, such mistakes are typically made at the supervisory or management level rather than by HR. Training supervisors and members of management on employee discipline and documentation can help your organization avoid similar mistakes.
Amelia Holstrom is an associate at the firm of Skoler, Abbott & Presser, P.C. and an editor of Massachusetts Employment Law Letter. Amelia can be reached at 413-737-4753 or aholstrom@skoler-abbott.com.