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Straight
Track #260
RAILROAD
RETALIATION
REPORT
Part 12:
COURT CLARIFIES
REQUIREMENTS FOR PROVING A RETALIATION CLAIM
By James L. Farina,
Alan J. Fisher and Steven P. Garmisa
Federal judges have
experience dealing with statutes that prohibit employers from
retaliating against employees who engage in protected activity.
Decisions issued by federal judges in cases involving other
anti-retaliation laws will provide insight into how they may handle
claims by railroad employees under Section 20109 of the Federal Rail
Safety Act.
A series of Federal
laws prohibit employers from discriminating against employees based on
race, sex, or various types of disability. These laws often prohibit
employers from retaliating against employees who act in good faith when
complaining about prohibited types of discrimination. Ruling in cases
involving the anti-retaliation sections of these other statues, federal
judges have explained that there are two ways of proving that adverse
action taken against an employee was motivated by unlawful retaliation.
Guidelines from
the U. S. Court of Appeals for the 7th Circuit
The Facts
In a 2006 decision
involving alleged retaliation against an employee who complained about
alleged race and disability discrimination, for example, the United
States Court of Appeals for the 7th Circuit explained that
you can prove a retaliation claim with two kinds of evidence: direct
and indirect.
“Under the direct
approach,” the Court of Appeals explained, “a plaintiff must present
evidence of: (1) a statutorily protected activity; (2) an adverse
action; and (3) a causal connection between the two.” The key
question in that case was whether “suspicious timing” between (1)
complaints about alleged discrimination, and (2) adverse action by the
employer, were sufficient to prove (3) that the employer acted in
retaliation for the complaints.
Deciding against the
plaintiff, the U.S. Court of Appeals explained that:
“Speculation
based on suspicious timing alone does not support a reasonable inference
of retaliation. Indeed, the mere fact that one event preceded
another does nothing to prove that the first event caused the second;
the plaintiff also must put forth other evidence that reasonably
suggests that her protected . . . activities were related to her
employer’s discrimination and termination.”
As for the
indirect approach, the U.S. Court of Appeals continued, the employee
“must establish a prima facie case of retaliation by offering
evidence of the following: (1) that she engaged in protected activity;
(2) that she was subject to an adverse employment action; (3) that she
was performing her job satisfactorily; and (4) that no similarly
situated employee who did not engage in protected activity suffered an
adverse employment action.”
The plaintiff in the
2006 case lost because the U.S. Court of Appeals concluded she
failed to present evidence on the third and fourth
ingredients for “indirect” proof of retaliation.
The 2006 case
involved a lady named Pamela J. Burks who alleged her employer
retaliated against her after she complained about race and disability
discrimination. Burks said she received a favorable performance review,
but then – several months after she complained about discrimination –
Burks said she received a bad evaluation and was fired.
Based on the
suspicious timing, Burks argued that she got a poor performance
evaluation, and was later fired, in retaliation for complaining about
discrimination. The Court of Appeals ruled that Burks failed to present
enough evidence to establish retaliation under either the direct
or indirect evidence approach.
Direct Evidence
Burks established
the first two ingredients for proving a retaliation claim with direct
evidence. Specifically, she presented evidence that she engaged in “a
statutorily protected activity,” and suffered “an adverse action.” The
problem was the third requirement: “a causal connection between the
two.” As the Court of Appeals explained:
“Ms. Burks appears
to have established the first two prongs: A complaint about race and
disability discrimination to supervisors is protected activity, and
termination is certainly an adverse action.
“Ms. Burks has not
put forth any direct evidence of a causal link between her complaints of
discrimination, her negative job reviews and her ultimate termination.
Instead, she relies on the timing of her complaints as circumstantial
evidence of retaliation.
“She contends that
she first complained of race and disability discrimination in March
2002, after her first positive three-month review.
“After that
complaint, Ms. Burks points out, she received her six-month review which
was, in contrast to the three-month review, negative. She continued to
complain and receive negative feedback until she ultimately was
terminated.
“Ms. Burks therefore
contends that, because her complaints, her negative reviews and
termination occurred after her favorable review, a permissible inference
is that her complaints of discrimination were the cause of the negative
reviews and termination.
“However, we have
stated that speculation based on suspicious timing alone does not
support a reasonable inference of retaliation. Indeed, the mere fact
that one event preceded another does nothing to prove that the first
event caused the second; the plaintiff also must put forth other
evidence that reasonably suggests that her protected speech activities
were related to her employer’s discrimination and termination.
“Ms. Burks presents
no evidence of a retaliatory motive other than the timing of her
termination. Therefore, she has not met her burden under the direct
method of proof.”
Indirect Evidence
“Ms. Burks’
retaliation claim also fails under the indirect approach,” the
Court of Appeals wrote. The Court explained:
“Under such an
approach, Ms. Burks first must establish a prima facie case of
retaliation by offering evidence of the following: (1) that she engaged
in protected activity; (2) that she was subject to an adverse employment
action; (3) that she was performing her job satisfactorily; and (4) that
no similarly situated employee who did not engage in protected activity
suffered an adverse employment action.
“Ms. Burks has not
established that she was performing her job satisfactorily.
“Moreover, she
points to no similarly situated individuals who did not engage in
protected speech activity. Therefore, defendants properly were awarded
summary judgment.” Burks v.
Wisconsin Dept. of
Transp.,
464 F.3d 744 (7th Circuit 2006).
Based on the
Burks case, railroad employees, union representatives and involved
attorneys need to look carefully at the facts and determine whether
there is enough evidence – direct or indirect – to meet the
burden of proof for a retaliation claim.[top]
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