THE TERRIBLE TRIO -POOR STRATEGY, DOCUMENTATION AND TESTIMONY

By: Claudia D. Orr

Under federal law, retaliation claims are more dangerous than discrimination claims because of the differences in proofs.  But, because retaliation claims “arise” following the exercise of rights (generally by the employee, but not necessarily so), there is usually an opportunity to work with experienced employment attorneys to avoid such claims. In the published opinion of Rogers v Henry Ford Health System, the federal Court of Appeals for the Sixth Circuit reinstated a retaliation claim that may have been avoidable with better strategy, testimony and documentation.  Let’s look at what went wrong.

The Plaintiff, Monica Rogers, has been employed by the Henry Ford Health System (“HFHS”) for over 30 years, mostly in the Human Resources Department.  She is African American and, at the time the lawsuit was filed, she was in her sixties. In 2007, Rogers became a Consultant in the Organizational Human Resources Development (“OHRD”) Department. The OHRD Consultant was a newly created position requiring a bachelor’s degree, but HFHS waived this requirement for her.  As I often tell my clients, no good deed ever goes unpunished…

Between 2008 and 2013, Rogers received mixed performance reviews from three different direct supervisors. While there was some positive feedback, there was considerable criticism concerning interpersonal problems (e.g., more focused on what other employees are doing than on her job, initiating harmful gossip, inciting negativity in workforce, etc.). Given her affect on the team, Rogers was referred to the Employee Assistance Program as part of a formal disciplinary action.

In 2012, two Senior OHRD Consultants left but were not replaced. Rogers began preforming some of their duties and, by the end of 2012, Rogers began asking for a reclassification to Senior OHRD Consultant. This position requires a Master’s Degree, which Rogers does not have. Recall she does not even have her bachelor’s degree.  Rogers thought the requirement should be waived again. When it was not, Rogers filed an internal complaint of race/age discrimination. On July 3, 2013, a month after Roger’s internal complaint was found to lack merit, Rogers initiated a charge alleging discrimination and retaliation with the Equal Employment Opportunity Commission (“EEOC”).

In August and September 2013, several coworkers began to express concerns about Roger’s behavior indicating she was acting euphoric, laughing really loud, swaying back and forth, touching a coworker with both hands during a meeting and other strange and erratic behavior.  One coworker expressed concern because he was aware that Rogers had taken a bat to the car windows of her husband’s mistress’s vehicle.

Based on the reports, the Vice President of Human Resources (“VP of HR”) met with Rogers, placed her on paid leave, and referred her to the EAP for a fitness for duty examination. Rogers met with an HFHS physician for the examination, who cleared her to return to work.  According to Rogers, the physician “said to her ‘I don’t know why they sent you down here’ and apologized.” It escapes me why an employer would ever use one of its own physicians for this purpose.  Always consult with your employment attorney before taking any action that implicates the Americans with Disabilities Act because it is a very complicated law and requires high level analysis and strategy.  At this point, Rogers filed her second EEOC charge claiming retaliation for having previously filed her earlier charge.

A week after returning to work, the VP of HR again met with Rogers to provide her with career options. According to Rogers, she was told she could take a severance package or she could accept a transfer to HFHS’s subsidiary Health Alliance Plan (“HAP”) where she would work in Human Resources as a Business Partner.  According to the VP of HR, she was provided a third option: remaining in her current OHRD Consultant position.

Apparently, the “three” choices were not well documented in any writing that Rogers signed, or this issue would not have been in dispute. Document, document, document!  Rogers should have been given a memo that made it clear that she could remain in her current position, but that she was being offered an exciting new opportunity at HAP that was hers if she was interested.  And, in my opinion, suggesting to an employee who has two pending EEOC charges that she should consider going away for some severance is a horrible idea because it shows you don’t want her there and are willing to pay her to go away.  If you are willing to pay the employee/charging party some severance, it should be through the EEOC’s mediation process and in settlement of the charges.

There is one further unfortunate bit of evidence. The VP of HR testified that “he gave Rogers the option of transferring to HAP because: ‘that way it would not put her right in the same area … you know, because we knew that at that point that she had an outstanding EEOC complaint and we just thought that that would give her kind of some space from all of that.’”  Not good.  The testimony tied the transfer to the pending EEOC charges.

While Rogers took the transfer at the same pay and has received pay increases since, she testified that her opportunities at HAP are more limited and it is an inferior position within the HFHS structure. She remains employed there today in HR.

After the EEOC found probable cause that Rogers was placed on administrative leave and reassigned in retaliation for having filed her previous charge, Rogers filed suit. The federal district court granted the summary judgment motion filed by HFHS, dismissing Rogers’ complaint and finding that she had failed to make out a case of discrimination or retaliation. Rogers timely appealed.

The dismissal of the discrimination claims was affirmed. There is no need to run through the Sixth Circuit’s analysis, but suffice it to say that Rogers was unable to show that she was qualified for the Senior OHRD Consultant position she sought (which required a Master’s Degree) or that HFHS had treated anyone similarly situated more favorably.

In reversing the dismissal of the retaliation claim, the Sixth Circuit noted that, unlike discrimination claims which require a materially adverse employment action, in the context of a retaliation claim, the plaintiff only needs to show that the challenged action ‘“well might have dissuaded a reasonable worker from making or supporting a charge of discrimination’. This showing is less burdensome than what a plaintiff must demonstrate for a Title VII discrimination claim.”

The court found that a “reasonable factfinder could conclude that Rogers suffered materially adverse actions” when “Rogers was referred to a fitness-for-duty exam, placed on leave…offered a choice about her future employment with HFHS”.  Moreover, HFHS failed to rebut Rogers’ assertion that her position at HAP was inferior to her OHRD Consultant position. Since, the cumulative effect could dissuade a reasonable employee from filing a charge of discrimination, an adverse action was established. Rogers only had to show a causal connection between the adverse actions and the filing of her first charge.  The court found the approximate two month temporal proximity between the two events satisfied this element.

HFHS stated a legitimate non-retaliatory reason for sending Rogers for the fitness-for-duty exam, which Rogers was unable to show to be pretext (complaints about her bizarre behavior). However, after these concerns were addressed, and HFHS’s own doctor cleared Rogers to return to work, the court found there was no basis to present her with career choices. And, the testimony of the VP of HR tying those choices to the EEOC charges sealed the reversal and reinstatement of the retaliation claim. There is a short dissenting opinion, but the retaliation claim is reinstated. Incidentally, the EEOC filed an amicus brief on appeal, weighing in. So, we know this was an important case to it.

The circumstances above played out over a period of just a few months and are a perfect example of when an experienced employment attorney, such as the author, should be consulted. When you see the claims headed your way, step out of the way and call for help.

This article was written by Claudia D. Orr, who is Secretary of the Board of Detroit SHRM, a member of the Legal Affairs Committee, and an experienced labor/employment attorney at the Detroit office of Plunkett Cooney (a full service law firm and resource partner of Detroit SHRM).  She can be reached at corr@plunkettcooney.com or at (313) 983-4863. For further information go to: http://www.plunkettcooney.com/people-105.html.   

Detroit SHRM encourages members to share these articles with others, inside and outside their organization, as long as its name and logo, and the author’s information, is included in the re-post of the article. August 2018.