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A recent Eastern District of Virginia decision, Dobias-Davis v. Amazon.com.kydc, LLC, 3:15-cv-00393-JAG, 2016 U.S. Dist. Lexis 3396 (Jan. 11, 2016), demonstrates how important it is for employees to clearly state how they believe they are being unlawfully discriminated against in order for the protections of employment discrimination “retaliation” claim to commence. I find this case to be a great educational opportunity for both employers and employees to see how “retaliation” claims generally work, especially concerning “protected activities.” This case shows that even in large companies with in-house counsel and H.R. departments, these cases happen, and it provides a chance to reflect on what might have been done differently to affect the case’s outcome. The decision can be downloaded here.

Facts Leading Up to the Case

The plaintiff (woman who was the Senior Human Resources Manager and the oldest employee in her position in North America) was fired, then subsequently sued her former supervisor (woman) and her company, a subsidiary of Amazon, for (1) defamation (false statements made that caused harm); (2) discrimination based on age and gender; and (3) discrimination based on retaliation.

The trouble began in April 2013 when the plaintiff and her supervisor had a confrontational teleconference. After that, the supervisor issued what was effectively a “correction plan” alleging that the plaintiff was not performing sufficiently and needed to take corrective action. The plaintiff objected to the plan, and showed her supervisor’s boss objective data that the plaintiff was performing effectively. In a follow-up meeting between plaintiff and her supervisor, the plaintiff demanded to know who the supervisor considered to be performing well, so the supervisor pointed out a specific young male human resources manager.

Afterward, the supervisor issued the highest tiered “correction plan,” which required the plaintiff to comply with specific objective standards by a deadline. While the deadline was normally 90 days, the supervisor limited plaintiff’s time to comply with the performance requirements to only 30 days. At this time, the plaintiff contacted her co-worker H.R. manager to report falsities in the correction plan, and complain of general retaliation by her supervisor. The plaintiff allegedly completed all the requirements in her correction plan within the 30 days, but was then fired by Amazon. The plaintiff requested Amazon to extend her correction plan time to 90 days so that previously awarded stock would vest within that time, but Amazon refused.

Throughout this dispute plaintiff never said or wrote to her supervisor or any other Amazon personnel that she believed she was being discriminated against because of her age or gender.

As required by law to eventually commence a discrimination lawsuit, the plaintiff filed a complaint with the Equal Employment Opportunity Commission. In her complaint to the EEOC, the plaintiff identified eight younger male managers working at the same facility as she did who were given at least 90 days to complete their correction plans, and four younger HR managers with comparable performance histories who were not issued correction plans.

So What Did the Court Do?

Plaintiff’s retaliation claim was based on the issuance of the correction plans, the expedited correction plan completion timeframe, and her termination whereas younger male managers did not face those actions under similar circumstances. Defendant Amazon moved to dismiss the retaliation claims. The court agreed with Amazon that the plaintiff failed to state a proper retaliation claim because she did not “engage in a protected activity.”

The legislative goal in anti-discrimination statutes is to abolish unlawful discrimination. The only way to assure the reduction of unlawful workplace discrimination is to assure employees that they will be protected from losing their jobs or other adverse consequences when challenging unlawful workplace discrimination. By establishing a wide range of activities that employees may safely participate in without fear of employer retaliation, the employer cannot take action against that employee without risking a retaliation lawsuit.

An employee can have a retaliation claim even if there was no unlawful discrimination. The elements of a retaliation claim are as follows:  (1) plaintiff engaged in protected activity, (2) the employer took adverse action against plaintiff; and (3) a causal relationship existed between the protected activity and the adverse employment action. This means that if an employee thinks that the company is discriminating against a person or class of people for an unlawful reason, and engages in one of the protected activities to stop that discrimination—even if the company is not actually discriminating against anyone—and the company takes adverse action against that employee for participating in the protected activity, the company can be sued for retaliation.

The court in Dobias-Davis only considered whether the plaintiff engaged in a protected activity, and did not address the other two elements. As the court explained, the Fourth Circuit (the federal Circuit Court of Appeals controlling Maryland, North Carolina, South Carolina, Virginia, and West Virginia federal court law) breaks protected activities into two categories: (1) participatory activities; and (2) oppositional activities.

Participatory activities simply involve participating in an investigation, hearing, or proceeding concerning possible discrimination in the workplace. This can be an employee seeking external assistance by filing an EEOC complaint, or commencing an internal investigation by filing a complaint with human resources or another appropriate company department. A simple way of recognizing “participatory activities” is to envision any situation where the employee is in some way commencing or participating in some kind of discrimination investigation.

In Dobias-Davis, the plaintiff never engaged in a participatory activity until she filed her EEOC complaint after being terminated. She never told her boss or any of the H.R. personnel that she believed she was being discriminated against based on her age or her gender. Since she never officially complained of unlawful discrimination, she could not allege that she engaged in a protected participatory activity.

Oppositional activities are sort of a catch-all category of activities where an employee does something to notify the employer of potential unlawful discrimination. The employee may threaten to file a discrimination charge, complain to an appropriate person (ex: H.R. department personnel; the board of directors), stage an informal protest, or refuse to obey an order reasonably believed to be based on unlawful discrimination.

But in Dobias-Davis, the plaintiff never did that either. In all of her meetings with her supervisor, her supervisor’s boss, and other people from H.R. did she only ever complain about her supervisor’s conduct and the correction plans. The court even tries to give the benefit of the doubt to the plaintiff when there was the one time that she and her supervisor discussed another younger H.R. manager who had been performing very well. During this conversation, the plaintiff did not notify her supervisor expressly or by implication that the supervisor was discriminating based on age or gender. And all of the other complaints that plaintiff raised with Amazon related to her relationship with her supervisor—not about being discriminated against based on age or gender.

Thus the court found that the plaintiff did not have a case for retaliation because she did not engage in a protected activity.

What Could Have Been Done Differently?

There are two perspectives to consider here: the employer’s and the employee’s.

Employer

It would be safe to say that Amazon has workplace discrimination policies that require its Human Resources department and management teams to take these claims seriously, and to handle them carefully. Based on the facts, Amazon did not have notice that the plaintiff believed she was being unlawfully discriminated against and thus did not implement any procedures related to unlawful workplace discrimination in this case.

Many businesses now include discrimination policies and procedures featuring internal reporting requirements. In the U.S. Supreme Court cases of Burlington Industries, Inc. v. Ellerth and Faragher v. City of Boca Raton, the Supreme Court essentially created an affirmative defense for employers in Title VII cases (unlawful discrimination by race, color, religion, sex, or national origin) where if an employer creates and adheres to a reasonable policy for reporting and resolving discrimination or harassment complaints, and the plaintiff fails to partake in that policy, then the plaintiff’s case will fail. Assuming that Amazon had such a policy, there wasn’t much more for Amazon to do to protect itself from the plaintiff’s claims for discrimination or retaliation since the plaintiff never actually alleged discrimination to trigger the reporting and resolution policy.

However, there are not a lot of facts surrounding why Amazon permitted the plaintiff’s supervisor to limit the correction plan timeline by 60 days compared to most other employees, or exactly how “bad” was the plaintiff’s performance to justify terminating her so early. Since plaintiff lost her stock options as a result of the early termination, there would seem to be some bad faith on Amazon’s part. But without a written contractual relationship between plaintiff and Amazon, terminating plaintiff without good cause would not be sufficient reason to commence a lawsuit in Virginia (see last section).

In short, other than attempting to resolve the antagonistic relationship between the supervisor and the employee through some form of mediation, there is not much else that Amazon could have done to prevent this case. As for the plaintiff’s supervisor, if her statements were defamatory, the plaintiff may still see her day in court against her ex-boss.

Employee

If the point hasn’t been made clear yet, here’s what the plaintiff should have done if she believed she was being discriminated against: Tell her employer that she believed that she was being discriminated against, and specifically for age and gender reasons. An employer cannot try to fix what the employer does not know. Whether the plaintiff really was discriminated against for her age or gender, it does not matter from a legal perspective because she never provided notice to anyone that she believed unlawful discrimination to be the reason for her problems at work. Without more, the case appears to be a case of a disgruntled employee alleging unlawful discrimination post-termination as a stronger reason than defamation to sue her former employer.

Employees should know their company’s discrimination policies (if any), and comply with them. An employee can always complain to a manager or other H.R. representative within the business about suspected unlawful discrimination, and that will invoke the protections of a retaliation claim. From that point forward, if the company does not take action, the employee can contact the EEOC to file a formal complaint. From that point forward, the employee will be protected from an employer’s adverse action if it relates to the employee’s actions taken to prevent unlawful discrimination. Employees can still be disciplined or fired for conduct that is unrelated to the protected activity, and cannot use the participation in a protected activity as a shield for later misconduct.

If you have any questions or wish to contribute to the discussion, feel free to comment on this post. Thank you for taking the time to review this information.

– Tim

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