1. RETALIATION CLAIMS AT THE EEOC Presented By: James Gregory and Wendy DeWind

2. What is Retaliation? ■Retaliation occurs when an employer unlawfully takes action against an individual in punishment for exercising rights protected by any of the EEO laws. –ADEA –Title VII of the Civil Rights Act of 1964 –Title V of the ADA –Section 504 of the Rehabilitation Act –The Equal Pay Act –Title II of the Genetic Information Nondiscrimination Act Hogan, Sarzynski, Lynch, DeWind & Gregory, LLP

3. Elements of a Retaliation Claim ■A retaliation claim has three elements: (1)A covered individual (2)Suffers an adverse action from the employer (3)Because he or she opposed an unlawful employment activity (also called protected activity) Really two sub-issues a.Because, (must prove causal connection) and b.Opposed an unlawful employment activity Hogan, Sarzynski, Lynch, DeWind & Gregory, LLP

4. ADA Extras ■Additional ADA Protections exist –Interference with the exercise of rights under the ADA –Also makes it unlawful to coerce, intimidate, threaten, or otherwise interfere with any individual’s exercise of any right under the ADA or interfering with any individual who is assisting another to exercise ADA rights Hogan, Sarzynski, Lynch, DeWind & Gregory, LLP

5. Elements of Retaliation –Who is a Covered Individual? ■EEOC says: people who have opposed unlawful practices, participated in proceedings, or requested accommodations related to employment discrimination based on protected class. ■Individuals who have brought attention to violations of law other than employment discrimination are NOT covered. i.e., Whistleblowers on ethical, financial, or similar practices. Hogan, Sarzynski, Lynch, DeWind & Gregory, LLP

6. Covered Individual Cases ■Former Employees: Robinson v. Shell Oil (Supreme Court, 1997) Robinson was fired by Shell Oil and filed a racial discrimination complaint. Later, he applied for a job at another company which required a letter of reference from his previous employer. Shell sent a negative reference letter and Robinson sued Shell again, this time for retaliation. ■Court Says: former employees are still protected and a negative reference would deter a reasonable employee. ■Close Associates: Thompson v. North American Stainless (Supreme Court 2011) An employee filed a discrimination complaint against her employer. Several weeks later her fiancée was fired. Then the fiancée filed a retaliation complaint and the employer claimed retaliation against third parties was not covered. ■Court Says: The Supreme Court ruled that third parties could be covered where retaliation would discourage the reasonable worker from filing a case. Hogan, Sarzynski, Lynch, DeWind & Gregory, LLP

7. Elements of a Retaliation Claim Adverse Action ■Adverse Action –Definition of adverse action under retaliation is broader than under non- discrimination claims –Means any action which might well deter a reasonable employee from engaging in protected activity –The standard is satisfied even if the individual is not deterred –Includes work related actions and non-work related actions –Includes retaliatory harassment and third-party retaliation Hogan, Sarzynski, Lynch, DeWind & Gregory, LLP

8. Adverse Action- Cases ■Burlington Northern & Santa Fe v. White (Supreme Ct., 2006) White filed an EEOC case. Three days after she amended her charges she was suspended for alleged insubordination. She was without pay for 37 days until reversed following her grievance. The Supreme Court said 37 days without pay even if restored later would likely deter a reasonable employee from engaging in the protected activity of filing an EEOC charge. ■Vega v. Hemstead Union Free School District, 801 F3d 72, (2 nd Cir., 2015) –Context Matters: Examples from case: Schedule Change which harshly impacts single parent or excluded from weekly training lunches –Assigned more students with excessive absenteeism –Salary had improper deductions for payback of sick bank –Curriculum changed without informing teacher and then receiving negative evaluation. ■Kirweg v. NYC Dept of Education 633 F approx. 40 (2 nd Cir., 2016) –Kirweg gave a pay raise to a subordinate, which was reversed by her superior, along with other alleged acts of retaliation for her filing a discrimination claim following her retirement. Employer states adverse action didn’t happen to Kirweg. –Court says: –“ Acts that humiliate or undermine an employee's authority [3] with subordinates can constitute adverse action supporting a claim for retaliation whether or not accompanied by any pecuniary injury” Hogan, Sarzynski, Lynch, DeWind & Gregory, LLP

9. Protected Activity ■Employers may not retaliate because individuals engaged in protected activity. Section 704(a) of Title VII contains both an opposition clause and a participation clause, making it unlawful for an employer to retaliate against an individual: – "because he has opposed any practice made an unlawful employment practice by this subchapter, or –because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter ■ 42 USC 2000e-3(a) Hogan, Sarzynski, Lynch, DeWind & Gregory, LLP

10. Protected Activity - continued ■Protected Activity –Must occur prior to the employer’s alleged retaliatory adverse action –Protection is broad even if underlying discrimination claim fails –Participation is deemed to include participation in the internal process of the employer –Nondiscriminatory discipline is permitted Hogan, Sarzynski, Lynch, DeWind & Gregory, LLP

11. Protected Activity - Opposition ■Opposition –Expressly or implicitly communicates a belief that the employer may be engaging in employment discrimination –Complaints about the employer to others can be protected opposition –All employees have this protection, including HR personnel and managers –Manner of opposition must be reasonable and based on a good faith belief that discrimination is occurring Hogan, Sarzynski, Lynch, DeWind & Gregory, LLP

12. Opposition Case Law ■Crawford v. Metropolitan Government of Nashville (Supreme Court 2009) –Crawford was interviewed regarding alleged sexual harassment of a co-worker by one of their supervisors. She made damaging statements regarding the boss, and was subsequently terminated for alleged drug use and embezzlement. –The Court says: – The Court found participation in the process with damaging testimony counts as opposing a practice. ■Kelly vHoward 2 nd Circuit 2013) –Plaintiff complained that the boss was having an affair with a subordinate and giving the subordinate preferential treatment and had no time to meet with her. Plaintiff was then fired. –Court says: –Court stated “paramour preference” is not illegal discrimination and she should have known that. Therefore she didn’t have a reasonable good faith belief that she was engaged in protected activity. Hogan, Sarzynski, Lynch, DeWind & Gregory, LLP

13. Participation Case Law ■Townsend v. Benjamin Enterprises (2 nd Cir 2012) Plaintiff HR director conceded she was not covered by opposition clause because she did not know whether Townsend’s allegations of harassment were true, so lacked a good faith belief that discrimination had occurred. Instead, she stated that by conducting the internal sexual harassment investigation she was covered under the participation clause. ■Court says: ■No, it must be an official EEOC investigation to be covered under participation clause. Hogan, Sarzynski, Lynch, DeWind & Gregory, LLP

14. Causal Connection ■Causal Connection –Unlawful retaliation is established when it is proven that the employer took the adverse action because the charging party engaged in protected activity. –Essentially a “but for” standard, and a higher level of causation than finding discrimination, which merely requires discrimination to be a motiving factor in the decision. Hogan, Sarzynski, Lynch, DeWind & Gregory, LLP

15. Causal Connection Case Law ■Vega; We have held in past that 5 months is not too long. Here, assignment of classes within a month, his change in curriculum without notification was within three months of his filing, and the erroneous sick leave deductions were within 2 months after Vega filed an addendum with additional charges (but 7 months after initial complaint). ■Riddle v. Citigroup (2 nd Cir., February 2016) 16 months too long, cites Hollander below. Further, the Court states it exercises judgment about inferences based on length of time in the context of each individual case. Here, no other context to support Riddle’s claim of retaliation. ■Hollander v. American Cyanamid, 895 F2 80 (2 nd Cir 1990) 3 ½ months too long to support causal connection where letter improperly stated length of non-compete clause. Hogan, Sarzynski, Lynch, DeWind & Gregory, LLP

16. ADA Interference Provision ■The ADA interference provision is triggered when the employer interferes with any attempted or actual exercise or enjoyment of ADA right, or by the assistance of another in exercising or enjoying those rights. –Protects against coercion, threats, intimidation, or interference with ADA rights –Broader than retaliation Hogan, Sarzynski, Lynch, DeWind & Gregory, LLP

17. Defenses ■The employer has certain defenses to a retaliation claim. –No evidence of causal relationship ■Too remote in time ■Unaware of protected activity –Non-discriminatory employee discipline ■Other similarly situated employees treated in a similar fashion –Employer Investigation ■Employer exercised reasonable care to prevent and correct any harassing behavior, (complaint mechanism) and ■Employee failed to take advantage of complaint mechanism Hogan, Sarzynski, Lynch, DeWind & Gregory, LLP

18. A Complaint has Been Filed! ■After the Employee has filed a complaint several things happen: –The Employer receives written notice of the complaint from the EEOC ■EEOC Form 131 - Notice of Discrimination ■Will require a response from the employer within 30 days ■Receipt of the form means there has been an initial determination that there is reason to proceed with the investigation Hogan, Sarzynski, Lynch, DeWind & Gregory, LLP

19. A Complaint has Been Filed! ■The Employer may receive a request to participate in mediation –Mediation is entirely voluntary but if an agreement is reached, you will avoid the necessity of a response and an investigation –Intense process which usually occurs via phone. –If agreement is reached, it must be signed before the mediation is concluded Hogan, Sarzynski, Lynch, DeWind & Gregory, LLP

20. Preparing the Employer’s Response ■The employer needs to provide a fact based position statement –Include factual rebuttal of each and every factual allegation of discrimination or retaliation –Include any documentation which supports your position ■Witness statements ■Policies/procedures ■Identify any individuals who have been similarly affected or treated ■Internal investigations ■Can be provided digitally through the EEOC’s Digital Charge System Hogan, Sarzynski, Lynch, DeWind & Gregory, LLP

21. Once the Response is Submitted ■The Employee may request a copy of the District’s response from the EEOC and the EEOC will provide it. –Confidential information will be redacted as necessary ■The EEOC will begin an investigation which may include: –Witness interviews –On-site visits –Subpoenas, if needed Hogan, Sarzynski, Lynch, DeWind & Gregory, LLP

22. Investigation ■The average time to investigate as per the EEOC in 2015 was 10 months. ■The reality of dealing with certain offices is very different. –Claim initially made in 2007 and received completed investigation in 2014 with findings against the District and a recommendation for conciliation. Hogan, Sarzynski, Lynch, DeWind & Gregory, LLP

23. After the Investigation ■A determination by the investigator will be made on the merits of the case. The EEOC will issue a Dismissal and Notification of Rights letter to the complainant. The Complainant will then have 90 days to file a lawsuit if she/he wishes. ■If there is reason to believe discrimination or retaliation occurred, a Letter of Determination will be issued and the case referred to conciliation in an attempt to resolve the complaint. ■When conciliation does not succeed, the EEOC may refer the matter to the U.S. Attorney General’s Office to file a federal lawsuit. If the EEOC decides not to litigation, the Complainant will be issued a Right to Sue letter and can file in federal court within 90 days. Hogan, Sarzynski, Lynch, DeWind & Gregory, LLP

24. Possible Remedies for the Complainant EEOC ■The EEOC is authorized by Section 706(f) of Title VII to seek temporary injunctive relief when the preliminary investigation indicates prompt action is needed by a judge –Must show that irreparable harm to the complainant will occur if no injunction granted ■Compensatory and punitive damages under 42 U.S.C. 1981(a) –Punitive damages capped at $50,000.00 for employers with 15-100 employees –For employers with more than 500 employees, cap is $300,000.00 Hogan, Sarzynski, Lynch, DeWind & Gregory, LLP

25. Remedies EEOC ■Compensatory and Punitive Damages not capped if the complaint was brought under the EPA or ADA. ■Back pay may be granted if the employee was terminated or constructively discharged. ■Equitable relief such as policy changes, training, follow-up reporting to the Commission and other such mechanisms will be granted if needed. ■2015 New Breed Logistics ordered by federal jury in Tennessee to pay $1.5 million for harassment and retaliation. ■2012 Fry’s Electronics settled an EEOC lawsuit for $2.3 million for harassment and retaliation in Seattle. Hogan, Sarzynski, Lynch, DeWind & Gregory, LLP

26. Division of Human Rights ■Process is very similar to the EEOC process but moves much quicker. –Complainant has one year from the date of discrimination to file –Notification of complaint includes a copy of the complaint. ■Generally, investigation is completed within 180 days. –The employer will need to submit a response just like the EEOC complaint but only has 20 days. –If the Complainant has submitted a DHR complaint, the complaint will be filed by DHR at the EEOC and DHR takes lead. Hogan, Sarzynski, Lynch, DeWind & Gregory, LLP

27. Division of Human Rights ■As with the EEOC, the case may be referred to ADR at any time ■Once the DHR has received the response, the parties will be notified of conference as part of the investigation. –Occurs at DHR offices –Parties will be required to bring requested witnesses –Interviews occur in the presence of everyone –Interviews lead by the investigator, not the representatives Hogan, Sarzynski, Lynch, DeWind & Gregory, LLP

28. Division of Human Rights ■After the conference, the investigator will issue a determination of probable cause. ■If probable cause is found, the case is referred to the hearing division. ■The hearing division will schedule a settlement conference in an attempt to resolve the issues. Hogan, Sarzynski, Lynch, DeWind & Gregory, LLP

29. Division of Human Rights ■If no settlement is reached, you will be referred to an ALJ for hearing. ■The Employer will receive a notice of hearing and then will need to submit an Answer at least 2 days prior to the hearing. –Answer should be in typical verified answer format ■A full evidentiary hearing will then occur before the ALJ. Hogan, Sarzynski, Lynch, DeWind & Gregory, LLP

30. Remedies DHR ■Civil fines and penalties not to exceed $50,000.00 unless the discrimination is determined to be wanton, willful or malicious. If found to be wanton, willful or malicious, the fine may be $100,000.00. ■Cease and desist order ■Back pay and restoration to position ■Compensatory damages ■Requiring report to DHR regarding the manner of compliance ■New York City Transit Authority v. State Div. of Human Rights, 78 N.Y.2s 207, 1991 Hogan, Sarzynski, Lynch, DeWind & Gregory, LLP

31. Handling a Retaliation Claim ■Get the full story from your client. They may be reluctant to share details because they don’t want to admit they did something wrong. You will have to ask lots of questions. ■Interview witnesses yourself and take statements. Memories are short. ■Give the client the information request and have them pull relevant documents, policies and procedures. ■Determine whether the internal procedure was used by complainant and whether the procedure was properly followed by the employer. Hogan, Sarzynski, Lynch, DeWind & Gregory, LLP

32. Handling a Retaliation Claim ■If the employer is engaging in potentially retaliatory conduct, advise them to stop. ■Collect information about relevant anti-discrimination trainings attended by supervisors involved in claims. ■Write a narrative response which provides the EEOC or DHR with context and understanding of events so they may better judge them. ■Prepare your witnesses prior to the investigation interviews. You will want to make sure they understand your defense. Hogan, Sarzynski, Lynch, DeWind & Gregory, LLP

33. P.O. Box 660 Binghamton, NY 13902-0660 520 Columbia Drive, Suite 204 Johnson City, NY 13790 (607) 797-4839 www.hsldg.com Hogan, Sarzynski, Lynch, DeWind & Gregory, LLP