Former Particle Dynamics Supervisor Alleges Age Discrimination and Retaliation

Read Jim Doyle's complete article at stltoday.com

U.S. Supreme Court Holds Adverse Action Against a Close Family Member of a Complainant Emloyee May Now Constitute Illegal Retaliation

The United States Supreme Court recently held in Thompson v. North American Stainless, LP, No. 09-291 (U.S. Jan. 24, 2011) that taking an adverse employment action against a close family member of an employee may constitute illegal retaliation.

This decision follows a recent trend of Supreme Court decisions expanding the scope of protection for employees in retaliation cases. The Court's conclusion that "close family members" may raise claims of their own, while "mere acquaintances" may not leaves a lot of room for disagreement over who can qualify as a "close family member" and will likely become the subject of significant litigation.

Eighth Circuit Finds Employee's Lawsuit Failed to Allege Actionable FLSA Retaliation

Lisa Ritchie filed a lawsuit against her former employer, St. Louis Jewish Light, and Larry Levin, her former supervisor under the Fair Labor Standards Act claiming that her employment was terminated in retaliation for insisting on recording her overtime work. Jewish Light and Levin filed a motion to dismiss arguing that informal complaints about overtime to a supervisor do not constitute “protected activity” under the FLSA. The trial court agreed and dismissed Ms. Ritchie’s complaint.

On appeal, the Eighth Circuit declined to decide whether informal complaints could, in fact, constitute “protected activity” under the FLSA finding instead that Ms. Ritchie’s complaint actually failed to allege that Ritchie made any sort of complaint to either Levin or St. Louis Jewish Light. Instead, the court found that “ the only complaining asserted in her pleading goes the other way--Levin complaining to Ritchie.” Concluding that “[R]ather than constituting an affirmative complaint that would trigger the anti-retaliation provision of the FLSA, [Ms. Ritchie’s] recording of overtime could be nothing more than mere insubordination, she having been instructed to the contrary . . . Insubordination is not protected under the FLSA,” the court affirmed the dismissal of the suit. The court further noted that “. . . if merely recording one's overtime is a ‘complaint’ that triggers the anti-retaliation provision of the FLSA, an employer would not be able to discipline an employee for working unauthorized overtime so long as the employee recorded the overtime.”

Ritchie v. St. Louis Jewish Light, No. 10-1356 (8th Cir. Jan. 4, 2011).

Eighth Circuit Court of Appeals Sets High Bar for Hostile Work Environment Claims

Sheila Smith was one of two African American women employed as transportation aides for the Fairview emergency room ("ER") in Burnsville, Minnesota. Smith worked in the Fairview ER until June 7, 2006, when she resigned after filing a charge of discrimination with the EEOC. In July 2006, the EEOC determined that there was "reasonable cause to believe that Fairview subjected Ms. Smith to a hostile work environment and retaliated against her in violation of Title VII." Ms. Smith thereafter filed suit against Fairview alleging hostile work environment discrimination, constructive discharge and retaliation.

In her Complaint, Ms. Smith alleged the following specific incidents of racial discrimination:

1. Soon after she began working at Fairview, a nurse asked Ms. Smith if she was Puerto Rican because she spoke Spanish.

2. In April or May 2005, Ms. Smith brought fried chicken to a Fairview potluck. Ms. Smith overheard a nurse inquire as to who had brought the chicken and then receive the response, "Who else?" Ms. Smith reported the incident to a supervisor but no corrective action was taken.

3. In May 2005, a picture of "Buckwheat" was posted on a door in the ER, along with other employees' childhood photographs. The caption above the picture read, "Guess who this is?" Ms. Smith inferred that the Buckwheat picture was placed on the door to represent her. Ms. Smith reported the incident to a supervisor but no corrective action was taken.

4. In the summer of 2005, a nurse, who was not Smith's supervisor, grabbed a patient chart from Ms. Smith's hands and said, "[T]hese black aides don't know what they are doing." Ms. Smith reported the incident to a supervisor but no corrective action was taken.

5. In September or October 2005, Ms. Smith brought a meal for lunch and upon entering the break room with the food, a co-worker complained about a fish odor. The coworker was informed that Ms. Smith's meal contained fish, to which the coworker responded, "I smelled food that smelled better than that crap in my garbage." Ms. Smith then informed the coworker that it was an African dish.

6. In October 2005, Ms. Smith observed two co-workers using a work computer to view an article on the website, The Onion. The article discussed Hurricane Katrina and contained an image of a heli-copter hovering over houses that were flooded by the hurricane. On the front porch of one of the houses, three people, appearing to be African-American, were pictured. Ms. Smith reported the incident to a supervisor but no corrective action was taken.

7. In December 2005, Ms. Smith observed two co-workers using a work computer to view the website, www.getoffended.com. Ms. Smith claimed that one of her co-worker's had invited her to look at what they were viewing. The website contained a racial slur. Ms. Smith reported the incident to Fairview's HR Representative, who reminded the co-workers that personal internet use at work was inappropriate.

8. After Ms. Smith returned from a short leave, she overheard a nurse say, "If she's unhappy here, why does she come back?" Another nurse responded, "Just like a dog, you beat them and abuse them, they still come back. Just like any good runaway slave would." Ms. Smith reported the incident to a supervisor but no corrective action was taken.

9. When Ms. Smith and an ER technician were discussing skin care, Ms. Smith suggested to the technician that she could use a certain facial cleanser to help with acne, and the technician replied, "People can't see yours because you're black."

10. At one point, a co-worker referred to Ms. Smith as "gal." The co-worker told Ms. Smith that she called everyone "gal."

11. After overhearing Ms. Smith and a hospital volunteer from Somalia discussing ethnic foods and employment positions at Fairview, Ms. Smith's co-worker told the volunteer that what she and Ms. Smith were discussing was inappropriate. Ms. Smith reported the incident to a supervisor but no corrective action was taken.

12. Teyona Brown, an African-American co-worker of Ms. Smith's, testified that she overheard two white employees referring to Ms. Smith and stating, "She needs to go back to the ghetto where she came from."

Upholding the lower court's grant of summary judgment in favor of Fairview on all of Ms. Smith's claims, the court began by noting that "The stringent hostile work environment standard is designed to 'filter out complaints attacking the ordinary tribulations of the workplace, such as the sporadic use of abusive language ... and occasional teasing.'" The court also noted that several of the allegations made by Ms. Smith (specifically the comments regarding Ms. Smith's lunch, acne, and ability to speak Spanish; the co-worker's comment about Ms. Smith's conversation with the Somali volunteer; and the image on The Onion), at most only tenuously relate to race.

However, the court conceded that the picture of Buckwheat, the comment about fried chicken, and the reference to the ghetto (although not all shown or recited directly to Ms. Smith) did carry some inferences that they were racially motivated. Nevertheless, the court concluded that these incidents were not so severe and pervasive as to be actionable. For the same reason, the court concluded that Ms. Smith's constructive discharge claim failed as well.

Smith v. Fairview Ridges Hospital, No. 08-1942 (8th Cir. Oct. 27, 2010).

Temporary Employee Can Sue For Retaliatory Discharge

On September 13, 2006, under threat of subpoena, Carrie Hester gave testimony in the workers compensation case of another employee at Gilster Mary-Lee Corp. The next day, September 14, 2006, Gilster informed Ms. Hester that it would no longer be using her services and that if she wanted other employment she would have to return to Manpower, Inc., the employment agency through which Ms. Hester was placed with Gilster.

Ms. Hester sued Gilster for retaliatory discharge, alleging that she had only been assigned to work at Gilster by Manpower and that Gilster was her real employer. Ms. Hester alleged that while she was assigned to work at Gilster, Gilster set her daily hours, her work schedule, her hourly wage, and her job assignments. Ms. Hester also alleged that while she was assigned to work at Gilster, no one from Manpower supervised her work and that she worked “side-by-side” with regular Gilster employees with no distinction between them and herself or other workers provided by Manpower to Gilster.

Gilster filed a motion to dismiss Ms. Hester’s lawsuit which included an affidavit signed by Gilster's Risk Manager who stated that Ms. Hester was never an employee of Gilster, that Gilster did not pay Ms. Hester, that she was not on Gilster's payroll list, that Gilster did not maintain personnel records for her, and that Ms. Hester was not entitled to pension or other employee benefits through Gilster. Additionally, Gilster’s Risk Manager stated that Manpower paid Ms. Hester for the work she had performed at Gilster and that Gilster did not set her hourly rate but had merely paid a flat fee to Manpower for her services. The trial court granted Gilster’s motion to dismiss finding that Ms. Hester was not employed by Gilster and that Gilster therefore could not have discharged her. Ms. Hester appealed.

The appellate court framed the issue as “. . . whether a cause of action for retaliatory discharge extends to a borrowed employee whose employment with the borrowing employer is terminated for testifying in a coworker's workers' compensation claim.” Resolving the issue in Ms. Hester’s favor, the court held that, as a matter of first impression, “. . . a borrowed employee may maintain a cause of action for retaliatory discharge against a borrowing employer based upon an allegation that the employee has been discharged for engaging in activities protected by the Workers' Compensation Act.”

Hester v. Gilster-Mary Lee Corp., No. 5-07-0283 (Ill. App. Ct. Dec. 18, 2008).