An Action Can be Adverse Even if the Employee Lacks Knowledge
The U.S. Court of Appeals for the Eleventh Circuit affirmed the summary judgment with respect to the privacy claims but reversed and remanded the retaliation claim. As to the privacy claims, the court of appeals found that the employee did not have a reasonable expectation of privacy in her work computer files because the employer’s policy was clear that her computer could be monitored.
However, the Eleventh Circuit held that “[t]he district court erred when it concluded that the [employer’s] forensic search…could not constitute a materially adverse employment action.” It found that the employee had established a prima facie case of retaliation under Title VII, which requires a plaintiff to establish that “(1) she engaged in statutorily protected activity; (2) she suffered a materially adverse employment action; and (3) there was some causal connection between the two events.” Establishing the prima facie case creates a presumption that there was discriminatory intent, which the employer may rebut “by articulating a legitimate, non-discriminatory reason for the employment action.”
The appellate court explained that the employee’s lack of knowledge does not shield the employer from a retaliation claim. In support, it relied upon Burlington Northern & Santa Fe Railway Co. White, in which the U.S. Supreme Court held that retaliation is material if it “might have dissuade[d] a reasonable worker from making or supporting a charge of discrimination.” The court of appeals further noted that the Burlington standard was an objective one that did not require employees to know all the retaliatory conduct, but that did require consideration of the totality of the circumstances. Accordingly, it concluded that the employee’s firing was a “clearly tangible consequence of the computer search” that would “have dissuaded a reasonable worker from making a discrimination complaint.” The appellate court expressed particular concern with the potential unfairness of an employer shielding itself by conducting the adverse action in secret, pointing out that it had previously found “evidence of being black-balled may contribute to a finding of a materially adverse employment action.”
Additionally, the Eleventh Circuit felt “compelled to point out that…[the employee] presented evidence sufficient for a jury to find that [the chief’s] reason for instigating the computer search was pretext for retaliation”—even though the district court had not analyzed whether the city had rebutted the presumption of intentional discrimination. In particular, the appellate court noted that the chief’s knowledge of the discrimination complaint, timing of the forensic search, and failure to follow the progressive discipline process all evidenced pretext.
Requiring Employee Knowledge Could Chill Claims
According to Litigation Section leaders, the Eleventh Circuit correctly rejected the notion that an adverse employment action requires the employee’s knowledge. “The court made a salient point that the argument does not make sense when applied to other scenarios, like promotions, a bonus, or other conversations that usually occur without the employee,” notes Ian H. Fisher, Chicago, IL, cochair of the Section’s Class Actions & Derivative Suits Committee. “An adverse employment action can take place outside of the employee’s knowledge that could chill an employee from reporting and making a claim,” he explains. “The court reached the right conclusion. It’s a question of fact for the jury. A reasonable jury could conclude that the [employer] acted with retaliatory animus,” Fisher highlights.
Employers Should Not Ignore Progressive Discipline Policies
“The takeaway for employers here is that an investigation and discipline of an employee for misconduct or violation of work policies must have a business justification for the action, ideally one that is documented in writing,” advises Emily A. McNee, Minneapolis, MN, cochair of the Young Lawyers, Membership, and Diversity Subcommittee of the Section’s Appellate Practice Committee. “The investigatory search here did not seem to be tied to a particular purpose,” she concludes.