Retaliation claim against Verizon will head to trial

This retaliation claim against Verizon was dismissed on summary judgment. The Court of Appeals, after first holding the hostile work environment claims deserve a full airing at trial, also holds that the jury may find in plaintiff's favor on her retaliation claim, as well. This is shaping up to be a hell of a trial.

The case is Moll v. Telesector, Inc., issued on February 28. My write-up on the sexual harassment claims is that this link. On the harassment claim, I noticed the case, lengthy as it is, does not appear to clarify or extend the law in that area. The same holds true for the retaliation claim. We have a lengthy opinion because the record on appeal must be huge. And the facts are extensive.

Here are the facts on the retaliation claim: in December 2004, after plaintiff objected to the sexual harassment, management decided to send four Buffalo-based employees to work in its Syracuse office, 160 miles from Buffalo. The employer said if you don't want to work in Syracuse you can find another job at Verizon or take a severance package, the details of which were under wraps until the employees decided to leave the company. Of the four employees who were given this option, plaintiff and a coworker, Chase, wound up in Syracuse, unable to find other work within the company. Working in Syracuse was quite stressful for plaintiff, whose family still lived in the Buffalo area, and the flexible schedule that allowed plaintiff to sometimes work in Buffalo was eventually discarded, making matters worse for plaintiff who began to suffer anxiety and took a disability leave of absence. When another telecommunications provider merged with Verizon, they were "puzzled" by plaintiff's work arrangement and returned her to Buffalo. Plaintiff was eventually terminated in a reduction-in-force.

First, contrary to the district court's holding, the transfer to Syracuse could be deemed an adverse action even though plaintiff was given other options. While plaintiff was told to find other work within Verizon, she was given "an unrealistically short time to get another position within Verizon" or take the severance, which itself was unrealistic since plaintiff did not know its terms in advance and Verizon was free to change the terms. While the company claimed its had a "solid business reason" to make the transfers to Syracuse, one manager testified that "the purpose of developing the plan . . . was to get them to leave," and that supervisors "wanted to make life as difficult as possible for Ms. Moll and Ms. Byrne and stated that they believed this action would force them to leave." Byrne had also filed a Title VII action against Verizon that "to an extent, paralleled the present action."

Of course, what also made the transfer adverse was the distance between Buffalo and Syracuse and the frequency with which plaintiff would have to travel between these two locations, at minimum, a round-trip of 320 miles, up to 1,000 miles per week. This would dissuade a reasonable person from speaking out against discrimination again, the Burlington Northern standard the Supreme Court adopted in 2006.

When plaintiff returned to the Buffalo office in 2006, she was told to work near the harassers whose behavior gave rise to her lawsuit, and in 2007 the company began a RIF, making her one of 156 employees who would lose their positions. One manger said, post-RIF, that he was "proud to be able to terminate Ms. Moll." Plaintiff's termination is ripe for trial on her retaliation claim because (1) she was never given a reason why she was chosen for the RIF, and (2) plaintiff in fact possessed the skills that management later claimed (on the summary judgment motion) she lacked, and management's claim to the contrary was speculative.

Plaintiff may also win the retaliation claim because a similarly-situated male colleague, Shelton, was not fired despite similar qualifications, and one key management witness at deposition was unable to articulate why Shelton was better qualified or differently situate than plaintiff, and they jury could even find that Shelton was not better qualified than plaintiff. 

You get the picture. The Court of Appeals thoroughly reviews the record and prior proceedings in the case to make this one of the most comprehensive factual analyses you will see from this Court on a single-plaintiff harassment and retaliation claim. And I have not even summarized plaintiff's equal pay claim yet. Like I said, this should be a hell of a trial.