Reverse Race Discrimination Claim Fails Because Employee Voluntarily Resigned

Lonnie Dodge began his career with the City of Belton Police Department in 2001. Mr. Belton was arrested in 2007 for driving while intoxicated and eventually pled guilty to careless and imprudent driving. Mr. Dodge did not tell his supervisor of his arrest or conviction.

The Department discovered that Mr. Dodge had been arrested for DWI during a background check. Upon discovering this information, the Department gave Mr. Dodge a choice - resign or be terminated. Mr. Dodge refused to resign and was suspended with pay. However, shortly after submitting his resignation, Mr. Dodge attempted to rescind his resignation. The Department informed Mr. Dodge it had already accepted his resignation. Mr. Dodge claimed he resigned because the Department told him that, if he resigned, his police officer's license would not be revoked.

Mr. Dodge sued the City of Belton under the Missouri Human Rights Act and Title VII claiming he was terminated because of his race (white). Mr. Dodge alleged that an African-American employee also failed to report an arrest but was not terminated.

Granting the City's motion for summary judgment against Mr. Dodge, the court found that because Mr. Dodge had resigned and was not actually terminated, he was unable to show that he suffered an "adverse employment action." The court also noted that, because he resigned, the only way Mr. Dodge could have established an adverse employment action was to show that the City "constructively discharged him" by "deliberately creating intolerable working conditions with the intention of forcing [Mr. Dodge] to quit." Citing the Eighth Circuit Court of Appeals, the court concluded that "an employee's being told that he or she will be fired for cause does not, in and of itself, constitute constructive discharge."

Dodge v. City of Belton, Missouri, No. 10-0038-CV-W-ODS (W.D.Mo. Feb. 4, 2011).

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).

Allegations in Lawsuit Must be "Reasonably Related" to Allegations in Charge of Discrimination to Survive Motion to Dismiss

Joseph Abellard filed a charge of discrimination against Boeing, his employer, with the Missouri Commission on Human Rights and EEOC on June 15, 2008. The charge alleged discrimination on the bases of race, age and disability. Plaintiff's charge read as follows:

I was hired by [Boeing] in November 1995. My last position held was Engineer Specialist/Sr. Engineer. In December 2007 I went on medical leave. I returned to work on March 5, 2008. I worked through March 7, 2008 but was informed that I had not provided the required documents for a release to return to work. I provided the employer with a release to return to work from my Psychiatrist. I was told I had to get another release from my primary doctor. I provided all of the required documents as instructed. Around March 26, 2008 I received a termination letter stating that I was terminated for being on leave illegally. I believe that I have been discriminated against due to a record of and/or perceived disability. I also believe that I have been discriminated against due to my race (African American) and age (52). This is in violation of the Americans with Disabilities Act of 1990, Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act of 1967.

Sometime thereafter, Mr. Abellard filed suit against Boeing alleging harassment, retaliation, failure to transfer, failure to accommodate, and being subjected to different terms and conditions of employment. Boeing filed a motion to dismiss arguing that these allegations were outside the scope of Mr. Abellard's charge of discrimination and therefore must be dismissed. The trial court agreed and dismissed these allegations finding that the allegations were not "reasonably related" to Mr. Abellard's charge and that Mr. Abellard had therefore failed to exhaust his administrative remedies.
Abellard v. Boeing, No. 4:10CV724 JCH (E.D.Mo. 2010).

Court of Appeals Upholds Jury Verdict in Human Rights Act Age Discrimination Case

Glenda Claus started working as a room attendant at the Park Place Hotel in Kansas City, Missouri, in 1984. In 2006, the head of housekeeping promoted Ms. Claus to housekeeping supervisor. On December 7, 2007, Ms. Claus was fired. She was 63 years old at the time. Ms. Claus filed a Charge of Discrimination against her employer and supervisor with the Missouri Commission on Human Rights and, subsequently, filed suit claiming that the hotel and her supervisor discriminated against her based upon her age. Ms. Claus sought actual and punitive damages under the Missouri Human Rights Act.

A jury ultimately awarded Ms. Claus $50,000.00 in compensatory damages and $150,000.00 in punitive damages and the hotel appealed. Affirming the jury verdict, the reviewing court found that the jury could more than reasonably have rejected the hotel's claims that Ms. Claus was fired for performance deficiencies given (1) the hotel's failure to allege any performance deficiencies until after Ms. Claus filed her discrimination claim, (2) Ms. Claus' record of positive job performance evaluations and lack of "write-ups," and (3) the hotel's failure to warn Ms. Claus about deficiencies in her performance despite regularly "writing-up" other employees. The court was particularly troubled that the retained house keeping supervisor, who was in her thirties, had been written up multiple times for excessive absences.

Regarding the punitive damages award, the reviewing court noted that the jury had before it evidence that Ms. Claus' supervisor had an extensive knowledge of employment law and had engaged in consulting work in human resources. The supervisor also had also trained small to medium sized businesses in employment law and assisted other employers with drafting their antidiscrimination policies. Moreover, Ms. Claus' supervisor and the hotel's owner both testified that they knew it was against the law to fire an employee because of an employee's age.

Finally, the appellate court determined that Ms. Claus was entitled to an award of attorney's fees under the Missouri Human Rights Act and remanded the case to the trial court for an award of fees and costs.

Claus v. Intrigue Hotels, LLC, No. WD 71927 (W.D.Mo. Dec. 28, 2010).

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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).

City not Entitled to Offset for Work. Comp. Benefits Paid to Former Employee

Alonzo Echols was fired by the City of Riverside in October of 2007. Mr. Echols claimed his discharge was in retaliation for a complaint of discrimination he made to the Missouri Human Rights Commission. A jury found that the City did retaliate against Mr. Echols and awarded him $463.00, which amounted to one week's salary.

The City then sought to offset the $463.00 verdict by the amount of unemployment benefits already paid to Mr. Echols. At a subsequent hearing, the trial court denied the City's request to amend its answer to add the affirmative defense of offset for unemployment benefits paid to Mr. Echols but nevertheless reduced Mr. Echols' award by the amount of unemployment benefits he had already received which reduced his actual damages verdict to zero.

On appeal, Mr. Echols argued that the trial court erred in reducing his $463.00 verdict to zero using unemployment benefits received as an offset because an offset is an affirmative defense that was waived by the City because it was not pled. The reviewing court agreed and further held that even if the affirmative defense of offset had been properly pled unemployment benefits received should not serve to mitigate a jury award for back pay where the employer is being punished for illegal conduct.

Echols v. The City of Riverside, No. WD 71560 (W.D.Mo. Dec. 21, 2010).