2005-6

Private Right of Action Implied by Title IX Includes Retaliation Claims Against a Male Coach who Complains about Sex Discrimination.

The Supreme Court of the United States has held that the private right of action under Title IX of the Education Amendments of 1972 applies to retaliation claims where the recipient of federal funding retaliates against an individual for complaining about sex discrimination. (Jackson v. Birmingham Board of Education, 2005 DJDAR 3602 (March 29, 2005) (Published March 30, 2005.)

Plaintiff Jackson is a physical education teacher at a Birmingham public high school and also worked as the girls' basketball coach. In December 2000, he began complaining to his supervisors that the girls' team was not receiving equal funding for and equal access to athletic equipment and facilities. The school failed to remedy the situation and Jackson began receiving negative work evaluations, culminating with his removal as the girls' coach in May 2001. Jackson sued the Birmingham School Board ("the Board") alleging violation of Title IX for retaliating against him for protesting the discrimination against the girls' basketball team. The district court granted the Board's motion to dismiss on the ground that Title IX does not create a private cause of action for retaliation claims. The Court of Appeals for the Eleventh Circuit affirmed, finding that nothing in the statute's text "indicates any congressional concern with retaliation that might be visited on those who complain of Title IX violations."

The Supreme Court reversed, finding that Title IX prohibits sex discrimination by recipients of federal education funding and contains an implied private right of action to enforce its prohibition on intentional sex discrimination. Retaliating against a person for complaining about sex discrimination is "another form of intentional sex discrimination encompassed by Title IX's private cause of action." Although the statute does not mention retaliation, this omission does not defeat Jackson's cause of action because Title IX was intended to have a broad remedial reach.

The Court also disagreed with the Board's argument that even if Title IX's private right of action encompassed retaliation, plaintiff was not entitled to its protection because he was an indirect victim of sex discrimination. Where retaliation occurs because an individual speaks out about sex discrimination, the complainant himself is the subject of retaliation whether he was the subject of the original discrimination complaint. The Court reasoned that reporting discrimination is integral to Title IX's enforcement and would be discouraged if retaliation against those who report discrimination went unpunished. For Jackson to prevail on the merits, however, he will have to prove that the Board retaliated against him because he complained of sex discrimination.

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No FEHA Retaliation Claim Stated Where Plaintiff Fails to Show that Employer's Retaliatory Actions had a Detrimental and Substantial Effect on her Employment.

The California Court of Appeal has reversed a judgment from a jury verdict in favor of an employee on her retaliation cause of action under the Fair Employment and Housing Act ("FEHA") finding that the evidence she presented failed to establish an adverse employment action, an essential element for a FEHA retaliation claim. (Margie McRae v. Department of Corrections, 2005 DJDAR 3222 (Cal.App.1st Dist., Div. 1, March 18, 2005) (Published March 21, 2005).)

Plaintiff is an African-American and a board certified surgeon. She began working for the Department of Corrections ("the Department") in 1992 at the medical facility in Vacaville. For several years, she regularly received excellent performance evaluations. In 1995, Dr. McRae applied for the position of Chief Medical Officer ("CMO") at the California State Prison in Solano. Another physician was appointed to the position and, on April 25, 1997, she filed a complaint with the Department of Fair Employment and Housing ("DFEH"), claiming she was denied the appointment because of her race. Dr. McRae contended that filing the DFEH complaint triggered a number of retaliatory actions by the Department, including three on which she based her unlawful retaliation claims.

The first alleged retaliatory act was a June 26, 1997 "letter of instruction" issued by Dr. Andreasen, the CMO at Vacaville, after Dr. McRae reportedly left her position in the emergency room unattended. The letter instructed Dr. McRae to familiarize herself with the regulations requiring physicians to be at their posts while they are on call and to notify their supervisor about any need to leave the job site. Dr. McRae filed a second DFEH complaint in June 1998, claiming that the letter of instruction was issued in retaliation for filing her first DFEH complaint.

The second alleged retaliatory act was an internal investigation regarding reports that Dr. McRae had failed to follow two of Dr. Andreasen's directives, refused to provide medical information to facilitate a patient's transfer to Hospice, and delayed administering antibiotics to another patient. As a result of the investigation, Dr. McRae was suspended in July 1998 for thirty days. The suspension, however, was never implemented because Dr. McRae was absent on a non-industrial disability leave and remained unaware of the suspension until she filed her civil complaint.

Dr. McRae's third allegation of retaliatory action was based on a change in her work assignment. On July 29, 1998, she was told that her disability leave would end on August 15 and was instructed to report to work at Solano Prison rather than return to Vacaville. She did not report to work at Solano and, instead, on August 18, 1998 filed a third DFEH complaint contending that her transfer to Solano was retaliatory. When Dr. McRae finally returned to work in March 1999, she reported to Solano Prison, but left approximately two and one-half weeks later and filed her civil action.

Plaintiff sued for discrimination and retaliation based on the FEHA and, at trial, the jury returned for the Department on the discrimination claim, but awarded Dr. McRae $75,000.00 on her retaliation claim. The Department appealed.

To establish a prima facie case of retaliation, a plaintiff must show (1) she engaged in a protected activity; (2) the employer subjected the employee to an adverse employment action; and (3) a causal link exists between the protected activity, and the employer's action. Although filing a DFEH complaint is a protected activity, the appellate court found that none of the retaliatory acts plaintiff alleged were "adverse employment actions" sufficient to state a claim. The Court held that an adverse employment action "means an employment action that causes substantial and tangible harm, such as, but not limited to, a material change in the terms and conditions of employment." Dr. McRae argued that the Court should employ the "deterrence test" adopted by some Federal courts, including the Ninth Circuit. This test holds that an adverse employment action is any adverse treatment based on a retaliatory motive that is reasonably likely to deter the charging party or others from engaging in protected activity. The Appellate Court declined to adopt the deterrence test, finding that it is overbroad and could support a finding of adverse employment action in nearly any employment action or decision.

The Court then analyzed whether the alleged retaliatory acts were, in fact, adverse employment actions. Issuing the "letter of instruction" was not an adverse employment action. It did not result in any loss of pay, status, or job responsibilities, it was not a performance evaluation, and there was no evidence that the letter could or did lead to an alteration of the terms and conditions of plaintiff's employment or that it deprived her of any promotional opportunities. The Court stated:

"We do not believe that a negative performance evaluation, even if unwarranted, can trigger an FEHA claim. Employee criticism is a useful and necessary tool that benefits not only the employer, but also the employee and the public. Although the FEHA seeks to prevent the chilling effect of retaliatory action, it should not be interpreted in a way that discourages employers from informing employees of any dereliction of duty, or of the need to improve their performance. The interest in allowing employers to take corrective action as needed, or to warn employees that their conduct may lead to an adverse employment action, requires an interpretation that tolerates the risk that an employee may be unable to seek redress through the FEHA for such criticism, even when that criticism in fact may be retaliatory."

With respect to the suspension, the Court stated that a thirty day suspension would normally be an adverse employment action. But a decision to suspend an employee is not itself an adverse employment action unless or until that decision is implemented. Here, the suspension never occurred because by the time the decision had been made, plaintiff was on a nonindustrial disability leave and, when she returned to work, she worked for less than three weeks and left without ever learning about the suspension. The decision to suspend thus had no impact on the terms and conditions of plaintiff's employment.

The transfer to Solano was prompted by Dr. McRae's ongoing disagreement with two nurses that resulted in a confrontation between plaintiff and the two nurses leading to her taking the non-industrial disability leave and obtaining a restraining order against the nurses. Plaintiff was told that the transfer was an effort to resolve several of her safety concerns at Vacaville. While a transfer can be an adverse employment action when it results in substantial and tangible harm, here Dr. McRae's transfer did not entail a demotion, a reduction in pay or a loss of benefits, a change in status or a less distinguished title. In fact, she had sought the CMO position at Solano in 1995.

Plaintiff also contended that even if there was no evidence that a single action by the Department was an adverse employment action, the Department's actions taken together established a pattern of conduct that the jury could have found to be an adverse employment action. The Court rejected this argument because plaintiff did not try her case on a theory of hostile work environment and while the evidence reflected isolated incidents of "unpleasantness," it did not show "the kind of severe and pervasive harassment that permits recovery on such a theory."

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New Federal Class Action Fairness Act Applies Only to Cases Filed On or After February 18, 2005.

In what is reported to be a case of first impression, a Colorado federal district court remanded a state wage and hour lawsuit, ruling that the recently enacted Class Action Fairness Act provides removal to federal court only for cases filed on or after the date the statute was enacted. (Prichett v. Office Depot, Inc., (D.C. Colo., 2005) (number 05-MK-392) March 9, 2005).

The Class Action Fairness Act ("the Act") was passed February 18, 2005 and creates subject-matter jurisdiction in federal courts over class actions in which: (1) more than five million dollars is in controversy, and (2) any class member is diverse in citizenship from any defendant. The Act allows for removal of applicable class actions to federal court and applies "to any civil action commenced on or after the date of enactment of this Act."

In April 2003, plaintiff sued Office Depot in state court asserting wage and hour violations on behalf of himself and other store managers. The action was certified as a class action in June, 2004. Defendant removed the lawsuit to federal court on March 1, 2005 and plaintiff sought to remand the action on the ground that the Act does not apply because the lawsuit was commenced in state court before February 18, 2005.

Defendant argued that the word "commenced" for purposes of the Act means the commencement of proceedings in federal court following removal, not the initial filing of the action in state court. Acknowledging that the definition of the word "commenced" as used in the statute is ambiguous, the court reviewed the statute's legislative history. The general purpose of the Act was to broaden access to federal courts for certain class actions, an intent that would support the interpretation permitting removal. But reviewing the Congressional proceedings in passing the Act, the court found that Congress did not intend the Act to apply to cases then pending in state court. The court concluded that the term "commenced" refers to the date an action is first filed in a court of proper jurisdiction, not the date that it is removed to federal court and, thus, the Act does not apply to cases commenced prior to February 18, 2005. The court remanded the case to the state court.

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