Articles Posted in Retaliation

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On February 21, 2018, the U.S. Supreme Court ruled in favor of petitioner Digital Realty Trust (“Digital Realty”) in Digital Realty Trust Inc. v. Somers, narrowing the definition of “whistleblower” under the 2010 Dodd–Frank Wall Street Reform and Consumer Protection Act (“Dodd–Frank”). The decision clarifies that Dodd–Frank’s anti-retaliation provisions do not apply to employees who only report violations internally within their company. In order to be covered by Dodd–Frank’s employee whistleblower protections, employees reporting securities law misconduct must go to the Securities and Exchange Commission (SEC).

Dodd–Frank was passed in 2010 in response to the 2007–2008 financial crisis with the aim of increasing responsibility and transparency in the financial industry, ending bailouts and “too-big-to-fail” banks, and creating restrictions on abusive financial services practices that hurt consumers. The law made many significant changes to financial regulations in government agencies, banks, and other financial services entities, including creating whistleblower protections for those who report unlawful activities in the financial industry. As the SEC explains, Dodd–Frank “expressly prohibits retaliation by employers against whistleblowers and provides them with a private cause of action in the event that they are discharged or discriminated against by their employers in violation of the Act.”

In Digital Reality Trust, Paul Somers alleged that his former employer—Digital Realty, a real estate investment trust—terminated his employment after he internally reported suspected violations of securities law to Digital Realty’s management. Somers then brought suit against his former employer alleging whistleblower retaliation claims under Dodd–Frank, which Digital Realty moved to dismiss on the grounds that Somers was not covered by Dodd–Frank because he had brought his concerns only to internal management, not the SEC. The district court and U.S. Circuit Court of Appeals for the Ninth Circuit denied Digital Realty’s motion, allowing Somers’s whistleblower claim to proceed. Digital Realty then appealed to the U.S. Supreme Court, which reversed the Ninth Circuit’s decision and dismissed Somers’s Dodd–Frank whistleblower claim.

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Edgar M. Rivera, Esq.

On February 26, 2018, in Smith v. North Shore-Long Island Jewish Health System, the U.S. District Court for the Southern District of New York denied a motion for summary judgment submitted by North Shore–Long Island Jewish Health System (the “Hospital”) to dismiss claims under the Family and Medical Leave Act (FMLA), Americans with Disabilities Act (ADA), and New York City Human Rights Law (NYCHRL) brought by Nola Smith, a former registered nurse with the Hospital, finding triable issues based largely on evidence that the hospital strayed from following its established policy.

Throughout Ms. Smith’s tenure with the Hospital, she suffered from anxiety disorders and panic attacks. The Hospital accommodated her with a lighter work schedule than other nurses, and she took intermittent leaves of absence under the FMLA.  The Hospital, however, issued Ms. Smith multiple warnings for her use of leave, even though some of the leave was under the FMLA and therefore protected. (The Hospital generated a spreadsheet of nurses who called in sick more than three times per quarter, regardless of whether the absences were covered by approved leave under the FMLA.)  The Hospital also allegedly denied Ms. Smith’s transfer requests and did not allow her to attend career-enhancing conferences because of the number of her leaves of absence. At one point, the Hospital did allow Ms. Smith to attend a conference, but she could not find anyone to cover her shift and ended up missing the conference.  The Hospital, however, paid Ms. Smith for the conference attendance, which payment Ms. Smith assumed represented accrued paid time off.  The Hospital later discovered that Ms. Smith had not attended the conference and fired her for accepting pay for a conference she failed to attend.

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Edgar Rivera, Esq. and Leah Kessler

On December 18, 2017, in Swiderski v. Urban Outfitters, Inc., Judge J. Paul Oetken of the Southern District of New York denied the majority of defendant Urban Outfitters’ motion for summary judgment. Although Judge Oetken ruled that there was insufficient evidence for a reasonable jury to find that Plaintiff Tatiana Swiderski was constructively discharged from her position as a sales associate at Urban Outfitters, he allowed her hostile work environment and retaliation claims to proceed to trial. This decision is important because it reaffirms an employer’s responsibility under the New York City Human Rights Law (NYCHRL) to take proactive measures to prevent discrimination from customers where the discriminatory conduct is previously known to the employer’s managers.

Tatiana Swiderski was hired as a sales associate at a Manhattan Urban Outfitters store in 2013.  Shortly after her hire, a male customer was caught photographing or videotaping up Ms. Swiderski’s skirt while she was on the stairs. Brian McCabe, a loss prevention agent employed by Urban Outfitters, escorted the customer out of the store and deleted all the pictures and videos of Ms. Swiderski from the customer’s phone. Mr. McCabe, however, repeatedly refused to give Ms. Swiderski the customer’s identification information so that she could file a police report. Later, an assistant store manager told Ms. Swiderski candidly that Urban Outfitters was aware of least one other customer that used to come in and regularly sit under the stairs to look up the skirts and dresses of female employees. Ms. Swiderski then went to Emily McManus, a manager, who confirmed this to be the case. Ms. Swiderski made repeated complaints to Ms. McManus about how both Urban Outfitters and Mr. McCabe had handled the incident, and, after Urban Outfitters reluctantly gave her the customer’s contact information, she filed a police report against the customer.

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Leah Kessler

On October 19, 2017, in John L. McKinney Jr. v. G4S Government Solutions, Inc., the Fourth Circuit affirmed the ruling of the district court, dismissing John McKinney’s hostile work environment, retaliation, and intentional infliction of emotional distress (IIED) claims against his former employer, G4S Government Solutions, Inc. (“G4S”). The Fourth Circuit concluded that Mr. McKinney failed to follow G4S’s procedure for reporting discrimination and his emotional distress lacked the necessary severity to sustain a claim.

In September 2005, G4S hired McKinney, who is Black, as a security officer at the Radford Army Ammunition Plant (RFAAP).  On May 23, 2013, McKinney observed four of G4S’s white superior officers laughing in a common area near his office. One of them, Shawn Lewis—a project manager and G4S’s highest ranking supervisor at RFAAP—asked McKinney “if he knew that there was a noose hanging on a nail inside a small closed cabinet outside the security captain’s office.” After showing McKinney the noose, Lewis directed McKinney to get rid of it, over McKinney’s objection.  As McKinney was walking away with the noose, another employee—who lived in a predominantly Black neighborhood—told McKinney, “I know what to do with [the noose]. I can use that around my house.” That same day, McKinney saw Lewis standing on a ladder in the supply room, holding a white sheet over another supervisor’s head to resemble a Ku Klux Klan hood.

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Owen H. Laird, Esq.

We recently wrote about two labor and employment law cases that will be heard by the United States Supreme Court in its current session: Janus v. American Federation of State, County and Municipal Employees and Encino Motorcars, LLC, v. Hector Navarro, et al. These cases, however, were not the only labor and employment law cases submitted to the Court for certiorari. The Supreme Court only takes a small fraction of the cases that are submitted to it each year, and, this year, the Court elected not to weigh in on several significant employment law cases. Because the Court decided not to hear the appeals, the decisions of the circuit courts in those cases will stand.  Two cases in particular, Stevens v. Rite-Aid Corp. and Bartels v. 402 East Broughton Street Inc., could have a significant impact on employees.

In Stevens v. Rite-Aid Corp., the Second Circuit addressed the question of what constitutes an essential job function for the purposes of the Americans with Disabilities Act (ADA). The ADA prohibits discrimination in employment against a “qualified individual” on the basis of their disability. A “qualified individual” is defined as someone who, with or without reasonable accommodations, can perform the “essential functions” of their job. In short, employers may not discriminate against employees with disabilities that do not prevent job performance, but when an employee cannot perform the essential functions of the job, even with an accommodation, the employer can terminate the employee.

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On September 26, 2017, the U.S. District Court for the District of Connecticut denied defendants’ motion to dismiss in Shakerdge v. Tradition Financial Services, Inc., allowing Jo Layla Shakerdge to move forward with her claims that her previous employer, Tradition Financial Services (TFS), retaliated against her for filing a complaint about discrimination at TFS by sabotaging her subsequent job search.

Shakerdge was employed as an energy commodities broker at TFS, a brokerage firm, where she alleges that she was subjected to sexist and racist comments and sexual harassment. Shakerdge describes a workplace that “objectified and degraded women”: her male coworkers allegedly openly viewed pornography on their computer screens, made offensive comments about TFS clients and employees, including Shakerdge herself, and subjected Shakerdge to physical sexual harassment, including an incident where TFS’s CEO attempted to whip Shakerdge with a riding crop Shakerdge had brought to the office to use for horseback riding. After her termination in June 2015, Shakerdge filed a complaint with the Connecticut Commission on Human Rights and Opportunities (CHRO), bringing hostile work environment, wrongful termination, and retaliation claims.

In January 2016, Shakerdge began the interview process for an open energy commodities broker position at another brokerage firm, BGC Financial, L.P. (BGC). In April 2016, BGC offered her the position, sent her an employment agreement and onboarding paperwork, granted her computer access and a company email address, and registered her as a broker with a government agency, according to Shakerdge. But after Shakerdge worked her first full day at BGC on April 12, 2016, a BGC HR employee sent her a text message that evening, telling her not to come back to the company. The following day, BGC emailed her “to confirm that BGC is no longer pursuing your candidacy at this time.”

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Last week, on July 6, 2017, the U.S. District Court for the District of Minnesota granted summary judgment in favor of defendant in EEOC v. North Memorial Health Care, finding that a Minnesota hospital had not violated Title VII of the Civil Rights Act of 1964 (Title VII) when it withdrew a nurse’s conditional employment offer after she requested a religious accommodation. The court held that the act of requesting a reasonable accommodation did not, in and of itself, constitute protected activity under Title VII. Consequently, North Memorial’s withdrawal of plaintiff’s job offer, as a matter of law, could never give rise to a Title VII retaliation claim. This decision contradicts the Equal Employment Opportunity Commission’s (EEOC) guidance, which includes requests for religious accommodations as protected activity.

Emily Sure-Ondara, the plaintiff in North Memorial, is a nurse and a practicing Seventh Day Adventist (a Protestant Christian denomination). In November 2013, Sure-Ondara was recruited for a registered nurse position at North Memorial. She applied for the job, and, after a series of successful interviews, North Memorial extended her a conditional offer of employment. According to the terms of the conditional job offer, Sure-Ondara was scheduled to work the night shift—11:00 p.m. to 7:00 a.m.—and weekends, every other weekend.

Upon receiving her proposed schedule, Sure-Ondara contacted North Memorial’s Human Resources (HR) to request a religious accommodation. As a Seventh Day Adventist, Ms. Sure-Ondara observes the Sabbath on Saturdays and was consequently not able to work on Friday nights due to her religious obligations. HR responded that the North Memorial union agreement required all nurses to work every other weekend and that, if Sure-Ondara would not be able to work the proposed schedule, the hospital might “need to offer the position to another candidate.” Sure-Ondara told HR that she would “make it work” and offered to either trade her Friday night shifts with another nurse or—if she could not find a substitute—come in to work anyway, despite her religious obligations.

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On June 15, 2017, U.S. District Judge John G. Koeltl of the Southern District of New York approved the parties’ consent decree in United States v. City of New York, a race discrimination case brought against the City of New York and the New York City Department of Transportation (NYCDOT) under Title VII of the Civil Rights Act of 1964 (Title VII). The lawsuit, filed by the U.S. Department of Justice (DOJ) in January 2017, alleged that NYCDOT management violated Title VII by systematically discriminating against racial minorities over a nearly ten-year period.

According to the complaint, the NYCDOT “engaged in a pattern or practice of racial discrimination and retaliation based on the failure to promote minority employees” within the Fleet Services unit, an NYCDOT division responsible for maintaining NYCDOT vehicles such as trucks, passenger cars, and heavy machinery. The complaint described a “culture of fear and intimidation” created by nearly a decade of discrimination and retaliation against minority employees in the Fleet Services Unit, perpetrated primarily by two NYCDOT executive directors.

The directors allegedly referred to African-American employees with racist epithets like “n*gger” and “monkey”; gave preferential treatment to white employees in promotions, hiring, and project assignments, including promoting less experienced white individuals over more qualified minority candidates and changing hiring procedures to disadvantage racial minorities; and retaliated against employees who complained of discrimination by cutting their hours and even physically threatening them.

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On May 3, 2017, in Philpott v. State of New York, the U.S. District Court for the Southern District of New York refused to dismiss sexual orientation discrimination claims brought under Title VII of the Civil Rights Act of 1964 (Title VII). Judge Alvin K. Hellerstein of the Southern District of New York joined a growing number of courts across the country in finding sexual orientation discrimination cognizable under Title VII, stating, “I decline to embrace an illogical and artificial distinction between gender stereotyping discrimination and sexual orientation discrimination.”

Plaintiff Jeffery Philpott was employed at the SUNY College of Optometry as Vice President of Student Affairs, where, according to his complaint, he was subjected to years of discrimination and harassment because he is gay. Philpott alleges that his supervisors and coworkers mockingly called him “sensitive” and “flamboyant,” told him that “separate but equal treatment of gay people might be best,” dismissively referred to his relationship with his long-term domestic partner as “this marriage, or whatever you want to call it,” and refused to let him meet their families because they did not “want our children to be around homosexuality.” In addition, SUNY allegedly excluded him from meetings and projects because of his sexual orientation and implied that he deserved a lower salary because he is gay, telling him that “your team [i.e., gay people] doesn’t have kids. You have more than you need.” Shortly after Philpott complained to SUNY of the ongoing discrimination, Philpott claims, SUNY terminated his employment. Philpott filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC), then filed suit in federal court, alleging hostile work environment, wrongful termination, and retaliation claims under Title VII.

Title VII does not explicitly prohibit discrimination on the basis of sexual orientation. Yet the EEOC and a growing number of courts take the position that the statute’s provision against sex discrimination covers sexual orientation discrimination, as well. Most recently, as we reported in April, the Seventh Circuit became the first Court of Appeals to recognize sexual orientation discrimination under Title VII with its groundbreaking decision in Hively v. Ivy Tech Community College. While the Second Circuit (the Court of Appeals with jurisdiction over New York) has previously ruled that Title VII does not prohibit sexual orientation, the court recently addressed the topic in Christiansen v. Omnicom Group, Incorporated, and—as we noted in our post about the decision—seemed reluctant to endorse existing precedent, stating that “no coherent line can be drawn” between gender stereotyping and sexual orientation discrimination claims.

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Harrison Paige

On April 4, 2017, in Vasquez v. Smith’s Food & Drug Centers, Inc., the U.S. District Court for the District of Arizona denied summary judgment on Juanita Vasquez’s disability discrimination and retaliation claims under the Americans with Disabilities Act (“ADA”). Vasquez alleged that that Smith’s Food & Drug Centers (“Smith’s”) had discriminated against her based on her disability by failing to accommodate her fibromyalgia and terminating her for her use of a previously approved accommodation. The court found that disputes of material fact remained which required that the case proceed to trial.

In 2009, Vasquez, a 17–year Smith’s employee, was diagnosed with fibromyalgia, a chronic condition which causes musculoskeletal pain, fatigue, disordered sleep, and memory and mood problems. Vasquez’s primary care physician completed a “Medical Accommodation Questionnaire” to submit to Smith’s after her diagnosis, stating that Vasquez could not stand for more than two hours, lift over ten pounds, or bend and stoop frequently. These restrictions disqualified Vasquez from working in certain positions at Smith’s, such as cashier roles, but Frank Orozco, the store manager at Vasquez’s location at the time, assigned her to work as a courtesy clerk and administrative secretary to accommodate her disability-related limitations.

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