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When Supreme Court Justices asked counsel in oral argument of Burlington Northern & Santa Fe Railway v. White whether an “adverse employment action” could be something as simple as not inviting an employee to lunch, the discussion seemed to highlight how petty some retaliation claims have become. It was, therefore, a surprise when a unanimous court concluded that virtually anything may be enough to form a basis for a federal court case.

Sheila White was the only woman working in the Maintenance of Way department at BNSF’s Tennessee Yard. She had been hired based in part on her previous experience operating forklifts, but her job title was “track laborer,” a physically demanding assignment encompassing a variety of tasks. From the beginning, White was assigned to operate the only forklift in the yard because another employee, Ellis, elected to forego forklift duties in order to receive higher per diem pay on a “mobile crew.” Forklift operation was White’s primary, but not sole, duty.

Less than three months after she began work, White complained that her foreman, Bill Joiner, “had repeatedly told her that women should not be working in the Maintenance of Way department” and had “made insulting and inappropriate remarks to her in front of her male colleagues” on two occasions. (Joiner admitted this was so; he had never supervised a woman and believed women should not work on a railroad.); Joiner was suspended for ten days and ordered to attend a sexual-harassment training session. When this outcome of her complaint was communicated to White, she was also informed that she was being removed from forklift duty because of co-worker complaints that “a more senior man should have the less arduous and cleaner job of forklift operator.”; Ellis, who had been one of the complainants, resumed the forklift duties because he was the only other employee qualified to do so. Two weeks later, White filed her first EEOC charge, claiming that the reassignment of her duties was both sex discrimination and retaliation for her complaint about her supervisor.

Two months thereafter, she filed a second retaliation charge with EEOC, asserting; she had been placed under “surveillance” with her daily activities being monitored. Three days after the EEOC mailed the charge to BNSF, White and her new foreman, Percy Sharkey, disagreed about whether White could ride with him on a trip to a work site in Arkansas; White insisted she was entitled to ride with Sharkey due to her seniority. Sharkey reported the incident to higher management, and White was immediately suspended without pay due to “insubordination.” White filed a grievance through her collective bargaining representative, resulting in her reinstatement and back pay for the 37 days she had been suspended. Notwithstanding this “make-whole” remedy, White filed a third retaliation charge with the EEOC. All of these events, from White’s first complaint to her third charge, occurred in less than four months.

A federal court jury in Tennessee awarded White $43,500.00 in compensatory damages, including $3,250 in medical expenses, for the retaliatory conduct of changing her job responsibilities and suspending her for 37 days without pay. A three-judge panel of the Sixth Circuit, in a 2-1 decision, reversed the result below and found in favor of BNSF, following which the full 13-judge court upheld the verdict below but strongly disagreed as to the appropriate standard to apply. The majority of the 13 judges, using the same test for retaliation as that which applies to a disparate treatment discrimination case, held that a plaintiff in a retaliation case must show an “adverse employment action,” defined as a “materially adverse change in the terms and conditions” of employment. BNSF sought Supreme Court review, pointing to conflicts between federal appellate courts concerning two issues:; (1); must action claimed to be retaliatory be “employment or workplace related,” and (2); how harmful must this action be to constitute retaliation?

The Court reached three sweeping conclusions:

Retaliation Claims Are Broader than Discrimination Claims. The provisions of Title VII which forbid retaliation aren’t limited to employment–related conduct.; Anything which might dissuade employees from complaining about discrimination is against the law; the two examples the Court gave are the FBI’s refusal to investigate death threats by a person toward an FBI agent and his wife, and filing false criminal charges against an employee. Cases dealing with employment discrimination in general are therefore not controlling. Anything which might chill employee complaints to EEOC is enough to trigger statutory protection.

“Harm” Doesn’t Always Involve Money. Although attempting to stress that “material” adversity is necessary as a basis for a retaliation claim, because courts must “filter out complaints attacking ‘the ordinary tribulations of the workplace,’” and warning that a discrimination charge creates no immunity from “those petty slights and minor annoyances that often take place at work”, the Court makes it clear that the circumstances will determine whether retaliation exists; “context matters.” Schedule changes are important to mothers of young children; excluding an employee from “a weekly training lunch” could deter that person from complaining about discrimination. But context focuses on the impact the retaliatory act would have on a reasonable person who is similarly situated to the plaintiff – which may mean that in the scheduling example the zone of comparison is limited to reasonable mothers of small children.

One Plus One Makes $43,500 – Plus Attorneys’ Fees and Costs. Given the first two conclusions, the train followed those tracks to its inevitable destination:; The reassignment of duties within a single job classification was “materially adverse,” and the fully-remedied suspension was nonetheless retaliatory because “White and her family had to live 37 days without income,” a time period including the Christmas holidays, and White “obtained treatment for her emotional distress.” Case closed.

There are numerous lessons to be learned from the White decision; not all of them are obvious:

Separate functional responsibilities. The pivotal figure in the White scenario was the department head in that facility, Roadmaster Marvin Brown. Brown, along with HR Manager Cathy McGee, interviewed White for her job. (The; Court simply stated that Brown hired White.); Brown assigned White to operate the; forklift. Brown received the complaint that White had been treated differently from male employees by Joiner, her foreman. (McGee investigated the complaint, but this isn’t mentioned by the Court.); Brown removed White from the forklift assignment and gave it back to Ellis. Brown received the complaints from White’s co-workers before White complained about Joiner but he did not remove White from the forklift until after her complaint. Brown was the target of White’s second charge, which contended he had placed her under surveillance and checked on her daily activities. The EEOC mailed a copy of the second charge to Brown three days before her suspension for insubordination. Brown made the determination that White had been insubordinate based on a statement from White’s new foreman, Sharkey. ; Brown was involved in every aspect of BNSF’s dealing with White for the entire period in question. This is a recipe for disaster. Allowing a manager who has been accused of discrimination to continue to deal with the accuser on a day-to-day basis cannot help but create tension and an environment in which further complaints will flourish. It is, therefore, critical that employers ensure that complaints are presented to an objective party.

Don’t weigh the merits of the underlying complaint. The White decision stresses that the court will look at the employer’s reaction to a complaint in determining whether the employer was out of bounds, without worrying about whether the complaint had merit. Complaints to the EEOC are presumed to be made in good faith; whether or not the employer believes a charge to be frivolous, it should be extremely careful in taking any adverse action, no matter how slight, which could later be argued to be retaliatory. While you may be able, somewhere down the road, to contend successfully that your reaction was warranted or that the charge was objectively meritless, such an approach can be guaranteed to produce yet more charges. The filing of a grievance under a union contract takes on a separate form of protection, that provided by §8(a)(4) of the National Labor Relations Act. Again, even a foolhardy grievance should be treated as serious, with the saving grace that the union may well adopt a more reasonable attitude toward the grievance than you would expect from an EEOC investigator. Finally, true “internal” complaints presented through a “chain of command” or through a special complaint procedure should be dealt with in a manner which is objectively fair.

Think of principle, not principal. It is readily apparent that the jury verdict in White’s favor, even when added to the 37 days of back pay her union got for her, would have cost BNSF far less than the attorney’s fees, expenses, time and trouble devoted to litigating this case through to the Supreme Court. BNSF probably believed this was a “no harm, no foul” case, and that the courts would conclude that White had not been injured. But the Supreme Court’s resolution of the issue means that non-monetary claims can be litigated, with the real exposure to the employer being the potential for paying the plaintiff’s attorney’s fees and costs in addition to paying to defend itself. Moreover, following the Civil Rights Act of 1991, all sorts of compensatory damages, expert witness fees and the like may be borne by a losing defendant. Add to that the prospect of potentially crippling litigation costs in cases where email and other electronic communications are at issue and you have a threatening landscape indeed. Look at the facts again:; The employee worries about getting her job back and “obtains treatment for emotional distress.” Apparently that’s all it takes – and anyone can claim worry and seek treatment. In practice, it may not be that easy, but plaintiffs’ attorneys have already begun to contend that the bar is so low as to be nonexistent.


We predict that the implications of the White decision will not be resolved for years to come. Trial courts may be reluctant to dismiss cases on summary judgment no matter how little is at stake. Unique factual situations will be dealt with case-by-case until a set of standards eventually emerges. Until that time, dealing with “squeaky wheels” in the workplace will entail extremely careful maintenance; policies, internal complaint procedures, disciplinary actions, evaluations, and every aspect of the employment relationship will need to be scrutinized to minimize exposure to retaliation claims. Supervisory training will take an even more crucial role in risk avoidance.

If you have further questions about this topic or related topics, please feel free to contact the Labor & Employment Practice Group at Womble Carlyle.

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Real Estate Practice, Employment, Contract and Real Estate Matters, Communications Practice, Broadcast, Cable and Telecommunications Work, Tax, Bankruptcy, Employee Benefits, Lobbying and Antitrust.

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