Wednesday, February 17, 2016

Humiliating an employee may constitute retaliatory behavior

What is retaliation? That is the question. If you complain about discrimination, and management takes offense to that and takes action against you, when is that response illegal retaliation under the civil rights laws, and when is it too trivial for the courts to care about?

The case is Kirkweg v. New York City Department of Education, a summary order decided on February 16. Kirkweg brought this action pro se, but I argued the appeal. She had brought and settled a prior discrimination case against the Department of Education. After that case settled, Kirkweg -- a school principal -- had approved a pay increase for one of her subordinates. City educational officials then revoked that approval. Kirkweg says the pay raise was revoked in retaliation for her prior lawsuit. That revocation embarrassed and humiliated Kirkweg in the eyes of her subordinates, particularly since other school principals did not have their promised pay increases revoked. Does that pay increase revocation violate Title VII's prohibition against retaliation? The Court of Appeals (Raggi, Winter and Droney) says it might, and the case is reinstated (the district court granted the City's motion to dismiss the Complaint for failure to state a claim, in part, because the pay raise revocation did not cost Kirkweg any money).

The standard under Title VII in determining if the plaintiff suffered retaliation is whether the defendant's response to the plaintiff's protected activity (i.e., filing a lawsuit, complaining about discrimination) would deter a reasonable employee from complaining again about discrimination. The Court of Appeals says a single act by management that humiliates or undermines the plaintiff's authority may be enough to make out a retaliation claim. Here is the analysis:

Acts that humiliate or undermine an employee’s authority with subordinates can constitute adverse action supporting a claim for retaliation whether or not accompanied by any pecuniary injury. See Howley v. Town of Stratford, 217 F.3d 141, 154−55 (2d Cir. 2000). The crucial inquiry is whether the act could dissuade a reasonable employee from making a discrimination claim against the employer. See Burlington N. & Sante Fe Ry. Co. v. White, 548 U.S. 53, 68−70 (2006). While a pattern of humiliating or undermining activity may more readily yield a positive answer, it cannot be said that a single act—including the single act here—is insufficient as a matter of law to support that inference. Thus, to the extent this was the basis for dismissal, we are obliged to vacate and remand.

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