50-50 deal on Title VII retaliation claims

A double-plaintiff discrimination claim goes to trial on the hostile work environment claims, but only one of the plaintiffs goes to trial on his retaliation claim. The case is Rivera v. Rochester Genesee Regional Transportation Authority, decided on December 21. Read all about the hostile work environment claims here. Both plaintiffs claimed that management retaliated against them for complaining internally about the work environment.

Let's start with Rivera, who goes to trial because co-workers harassed him over his national origin. Under the Supreme Court's Burlington Northern precedent, in order to win a retaliation claim, the employer's reaction to the good-faith complaint has to dissuade a reasonable worker from making or supporting a charge of discrimination. While context matters in this equation and the Court will look at the alleged acts of retaliation in the aggregate and not piecemeal, Rivera does not have enough. "Rivera points to two disciplinary citations he received for insubordination over a two-year period, his assignment to drive particularly 'dirty buses,' one late overtime payment, and Lift Line’s one-time refusal to give him a half-day off for a doctor’s appointment." But, the Court of Appeals (Lohier, Droney and Kearse) says that Rivera "presented no evidence that they reflected anything other than RGRTA’s 'enforce[ment] [of] its preexisting disciplinary policies in a reasonable manner.'”

Talton, though, gets a trial on his retaliation claim. His supervisor, Tibero, told Talton that filing complaints of discrimination could get him fired. And, when Talton told Tibero about the hostile work environment, Tibero responded, "suck it up and get over it, nigger!" If that does not dissuade someone from complaining about discrimination again, then I don't know what would. The Court of Appeals agrees with me: "In our view, such discriminatory harassment from a supervisor may alone suffice to establish an adverse employment action, as 'unchecked retaliatory co-worker harassment, if sufficiently severe, may constitute adverse employment action so as to satisfy the [third] prong of the retaliation prima facie case.'” In contrast, when other co-workers complained about Talton's alleged disruptive behavior in the workplace, management took care of it expeditiously. "A reasonable juror could infer that RGRTA’s swift response to the complaints by Talton’s co-workers was designed to, and did, send a message that Talton’s employment at Lift Line was in serious jeopardy as a result of the EEOC charges."