Bad jury instruction gets retaliation plaintiff a new trial

Anything can happen at trial. Even experienced judges can make mistakes that prompt the Court of Appeals to order a retrial. It happened again this week, when the Second Circuit uprooted a defense verdict in a Title VII retaliation claim because the trial court did not properly instruct the jury.

The case is Henry v. Wyeth Pharmaceuticals, Inc., decided on August 4. Henry worked for Wyeth in a variety of positions. At some point in his employment, Henry came to believe that he was being discriminated against because of his race. Henry specifically complained about discrimination in meetings with certain Wyeth managers, including, among other people, the head of diversity and the head of the Pearl River facility, where Henry worked. On Henry's behalf, an attorney also advised the company in writing that Henry was being discriminated against. We call this "protected activity" under Title VII because management cannot take these protests into account in disciplining him or denying him a promotion. Then, Henry dropped the Big One: he filed a formal charge of employment discrimination with the Equal Employment Opportunity Commission. After that, the bottom fell out for Henry, and he was placed on a performance improvement plan and otherwise micromanaged and denied a promotion that was given to a white applicant.

The went to trial in the Southern District of New York. If you are a plaintiff in a civil rights case and you think there is no way you can lose your case, please read the next sentence closely. An experienced federal judge, in his 36th year on the bench, gave the jury a bad instruction on a routine issue concerning retaliation in Title VII cases. These things happen. In 2000, setting out a "general corporate knowledge" theory, the Second Circuit held the jury can presume that individuals who screwed over the plaintiff in the wake of his protected activity knew about the protected activity, even if the employee did not bring his discrimination complaints to their personal attention. That case is Gordon v. New York City Board of Education, 232 F.3d 111 (2d Cir. 2000). Summarizing Gordon, the Second Circuit (Leval, Pooler and Parker) in Henry's case says:

Gordon directly addressed the situation in which a corporate agent carries out an adverse employment action on the orders, explicit or implicit, of a superior with knowledge that the plaintiff has engaged in a protected activity. However, in order to show causation in the sense required by McDonnell Douglas—that is, a causal connection between the protected activity and the adverse employment action—it is not necessary that the supervisor who has knowledge of the plaintiff’s protected activities have ordered the agent to impose the adverse action. A causal connection is sufficiently demonstrated if the agent who decides to impose the adverse action but is ignorant of the plaintiff’s protected activity acts pursuant to encouragement by a superior (who has knowledge) to disfavor the plaintiff.

That's as good an explanation of the "general corporate knowledge" theory as I've seen. Since Judge Conner did not properly instruct the jury on the law governing retaliation claims, Henry, who lost the trial on that claim, gets a new trial. The Court of Appeals does not think Henry has a compelling case, but that is not required in order for him to get a new trial. On paper, he can win the case because the adverse decisions - including the promotion denial - closely followed Henry's protected activity.