Documentation of Performance Issues Defeats Employee’s Claims of Retaliation

Kollman & Saucier
Kollman & Saucier
07/31/2019
Employers may find it concerning when their employees with performance issues also complain of workplace discrimination.  A recent decision out of the Eastern District of Virginia illustrates how progressive discipline, documentation of employee work performance problems, and investigation of employee workplace complaints can help protect employers in the long run.  Gooding-Williams v. Fairfax County School Board, No. 1:18-cv-01177 (E.D....
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Separation Code That Raises Red Flags Can Constitute Post-Settlement Retaliation

Bernadette Hunton
Bernadette Hunton
07/29/2019
When serious problems in the workplace arise, a settlement and release that allows the employer and employee to go their separate ways often presents as an attractive resolution.  The employee can separate neutrally to look for a more suited work environment, while the employer can move on without fear of litigation.  Unless of course the agreement fails to properly address prospective employer inquiries, in which case an employer may well find...
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Fourth Circuit Holds That Employer’s Shifting Story Is Evidence Of Pretext

Kollman & Saucier
Kollman & Saucier
04/26/2019
To prevail in an employment discrimination case, the plaintiff is required to present evidence of pretext by his or her (former) employer.  What exactly does pretext mean, though, at a practical level? The Fourth Circuit Court of Appeals recently explored this concept in holding that a former trash truck driver was entitled to go to trial based on sufficient evidence that his former employer’s proffered reason for terminating him was a...
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Some Fun Facts About The EEOC's 2018 Charge Data

The EEOC released its 2018 charge statistics earlier this week.  Here are three key pieces of information to consider: Charge filings have decreased.  In 2018, the EEOC processed 76,418 charges, which represents more than a 9% decrease from 2017, a nearly 17% decrease from 2016, and a 23.5% decreased from the all-time high year of charge filings in 2010 (99,922 charges).   Because charge filings tend to flow with the relative strength of the...
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Losing Out On Voluntary Overtime Chances Can Be Tangible, Adverse Action.

Employers are by now well-versed in the concept that under Title VII, an employer is strictly liable for a supervisor's harassment when the harassment results in a tangible employment action.  The obvious employment actions include termination, demotion, failure to promote, reassignment with significantly different responsibilities, etc.  The Fourth Circuit Court of Appeals, in Ray v. International Paper Co., No. 17-2241 (4th Cir. 2018), added to...
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Employee Who Copies Personnel Records Loses Retaliation Claim

Eric Paltell
Eric Paltell
11/19/2018
The United States Court of Appeals for the Fourth Circuit has ruled that an employee's review and copying of confidential personnel files to be used in support of her charge of discrimination is not protected by Title VII's anti-retaliation provisions when it was done in violation of a state law. Netter v. Barnes, No. 18-1039 (4th Cir. 11/15/18). The case arose when Catherine Netter, a 19-year veteran of the Guilford County, North Carolina Sheriff's...
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Yes, Really, Honeywell. You Should Not Finally Fire An Employee Who Has Been Chronically Tardy For 12 Years Only After She Files An FMLA Leave Request.

Randi Klein Hyatt
Randi Klein Hyatt
08/24/2018
Honeywell International learned the hard way a lesson that comes up regularly with employers:  An employee who has had a long-standing problem with X.  And X can be anything from tardiness, forgetting to clock out, violating dress code, missing regular internal filing deadlines, or some other consistent deficiency, that is frustrating and warrants discipline, yet for one reason or another (too busy, forgot, not enough staff and need to keep her...
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First Circuit Holds University's Response To Sex Harassment Is Retaliation

Bernadette Hunton
Bernadette Hunton
08/15/2018
Now more than ever, employers are aware of their obligation to take prompt remedial action in response to complaints of sex harassment.  But what happens when the employer’s attempt to placate a complainant through voluntary transfer results in less favorable work conditions?  Well, now the complainant has a cause of action for retaliation, explained the First Circuit in Carlson v. Univ. of New England, No. 17-1792 (1st Cir. 8/10/18). In this...
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An Employer’s Statements Can Elevate An Employee’s Complaint Into Protected Activity

Garrett Wozniak
Garrett Wozniak
07/24/2018
The Fourth Circuit Court of Appeals has given new life to a plaintiff’s retaliation claim under Title VII of the Civil Rights Act of 1964.  Strothers v. City of Laurel, 2018 U.S. App. LEXIS 18417 (4th Cir. July 6, 2018).  The Court concluded that the plaintiff reasonably believed that she was harassed because of her race and her former employer knew that she was complaining about conduct that possibly violated Title VII. The City of Laurel hired...
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Fourth Circuit Puts Employee’s Retaliation Claim Over A Barrel

Garrett Wozniak
Garrett Wozniak
07/13/2017
I enjoy the Cracker Barrel.  Their chicken and dumplings is almost as good as what my southern family cooked up when I was a child.  And, their sourdough French toast is wonderful, with or without a few of those small bottles of syrup.  Alas, this is not a food blog.  This post is about a recent decision affirming summary judgment against former Cracker Barrel employee Beatrice Lovett (African-American) on her Title VII and Section 1981...
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