Defining a Retaliatory Adverse Action from Wideman to Shotz: the Legitimacy of the Eleventh Circuit's Retaliation Case Law

• Citation: Vol. 21 No. 4
• Publication year: 2010

Georgia State University Law Review

Volume 21 , ,,

Article 11

Issue 4 Summer 2005

6-1-2005

Defining a Retaliatory Adverse Action from Wideman to Shotz: The Legitimacy of the Eleventh Circuit's Retaliation Case Law

Jonathan M. Gallant

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Recommended Citation

Gallant, Jonathan M. (2004) "Defining a Retaliatory Adverse Action from Wideman to Shotz: The Legitimacy of the Eleventh Circuit's Retaliation Case Law," Georgia State University Law Review: Vol. 21: Iss. 4, Article 11. Available at: http://digitalarchive.gsu.edu/gsulr/vol21/iss4/11

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DEFINING A RETALIATORY ADVERSE ACTION FROM WIDEMAN TO SHOTZ: THE LEGITIMACY OF THE ELEVENTH CIRCUIT'S RETALIATION CASE LAW

Introduction

Title VII of the 1964 Civil Rights Act protects employees from workplace discrimination and retaliation.¹ Discrimination occurs when an employer treats an employee differently because of a certain statutorily protected characteristic, such as an "individual's race, color, religion, sex, or national origin." Upon an employee's filing of a Title VII discrimination complaint with the Equal Employment Opportunity Commission (EEOC), the employer may retaliate by further subjecting the employee to further mistreatment.³ Retaliation is adverse treatment by an employer arising from an employee's filing of a discrimination complaint.⁴ Recognizing the ripple effects that a discrimination claim may have on the employer-employee relationship, courts have enforced anti-retaliation mechanisms under Title VII and other similar antidiscrimination statutes such as the Americans with Disabilities Act (ADA) and the Age Discrimination in Employment Act (ADEA).⁵

1. The 1964 Civil Rights Act states in pertinent part:

It shall be an unlawful employment practice for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin. 42 U.S.C. § 2000e-2(a)(l) (1964); see also id. § 2000e-3(a).

2. Id. § 2000(eM2Xa)0); ^{Justin p}- O'Brien, Weighing Temporal Proximity in Title VIIRetaliation Claims, 43 B.C. L. REV. 741, 742 (2002).

3. See Christopher M. Courts, An Adverse Employment Action—Not Just an Unfriendly Place to Work: Co-Worker Retaliatory Harassment Under Title VII, 87 IOWA L. Rev. 235,237-38 (2001).

4. O'Brien, supra note 2, at 742.

5. See Age Discrimination in Employment Act, 29 U.S.C. § 623(d) (1994); Americans with Disabilities Act, 42 U.S.C. § 12203(a) (1994). Other statutes that prohibit unlawful retaliation are the National Labor Relations Act, 29 U.S.C. § 158(a)(4) (1994); Occupational Health and Safety Act of 1970, 29 U.S.C. § 660(c) (1994); Employee Income and Retirement Security Act, 29 U.S.C. § 1140 (1994); and the Family and Medical Leave Act, 29 U.S.C. § 2615 (1994). While Title VII's protections are the focus of this Note, several ADA cases herein share substantially similar retaliation considerations. Thus, while courts consider these cases under different retaliation statutes, this Note addresses them together due to the similar application in reasoning and purpose. The Eleventh Circuit's

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Although Title VII clearly protects employees from retaliation, the statute has left the limits of acceptable employer behavior to the courts.⁶ Courts have struggled to define what employer actions should give rise to a retaliation claim.⁷ While all courts agree that employer behavior affecting "ultimate employment decisions" in response to an employee's filing of an EEOC complaint is actionable retaliation under the statute, the circuits have not reached a consensus on actions that fall short of such decisions.⁸ After an employee files a discrimination complaint, does Title VII protect the employee from being excluded from overtime compensation?⁹ Can an employer transfer an employee against his subj ective preference?¹⁰ Are unfavorable job evaluations and poor performance ratings actionable?¹¹ Is co-worker harassment retaliation?¹² Is publishing damning personal information retaliation?¹³ Under the "ultimate employment decisions" interpretation of Title VII, none of these actions would give rise to a retaliation claim because they do not

uniform analysis binds these cases together. Only when considered as a whole do the retaliation cases truly highlight the court's ability to license an employee's legitimate grievance and, at the same time, sift through insufficient claims. See infra Part IV.

6. See Courts, supra note 3, at 241.

7. See id.; see also O'Brien, supra note 2, at 742. Compare Mattern v. Eastman Kodak Co., 104 F.3d 702 (5th Cir. 1997), with Wideman v. Wal-Mart Stores, Inc., 141 F.3d 1453 (11th Cir. 1998).

8. See Courts, supra note 3, at 241. When alleging a discrimination complaint, the employee must first file with the EEOC when lodging the complaint. Id. at 236. "Ultimate employment decisions" are those employment actions that involve firing, failing to grant leave, refusing to promote, adjusting compensation, and adjusting benefits. See id. at 241. Examples of employment acts that fall short of ultimate employment decisions include the following:

[0]ral reprimands and derogatory comments, a purely lateral transfer, a temporary transfer to a lower-grade position, negative performance evaluations, redesignation of a job title and a temporary grade reduction, informally meeting with the plaintiff in an attempt to peacefully resolve a dispute, the employer's request that the plaintiff-employee drop her EEOC charge, voluntary acceptance of an early retirement package, and troubled interactions with co-workers. Donna Smith Cude & Brian M. Steger, Does Justice Need Glasses? Unlawful Retaliation Under the Title VII Following Mattern; Will Courts Know It When They See It?, 14 Lab. Law. 373,407 (1998). *

9. See Shannon v. BellSouth Telecomm., Inc., 292 F.3d 712 (11th Cir. 2002).

10. See Doe v. Dekalb County Sch. Dist, 145 F.3d 1441 (11th Cir. 1998).

11. See Davis v. Town of Lake Park, 245 F.3d 1232 (11th Cir. 2001); see also Lucas v. Grainger, Inc., 257 F.3d 1249 (11th Cir. 2001).

12. See Knox v. Indiana, 93 F.3d 1327,1335 (7th Cir. 1996); see also Courts, supra note 3.

13. See Shotz v. City of Plantation, Fla., 344 F.3d 1161, 1182-83 (11th Cir. 2003).

2005J ELEVENTH CIRCUIT'S RETALIATION CASE LAW 1081

relate to firing, granting leave, refusing to promote, or adjusting compensation.¹⁴

The Eleventh Circuit considers acts that fall short of ultimate employment decisions in determining whether there has been a retaliatory adverse employment action.¹⁵ The legitimacy of this approach, however, rests not in a broad construction alone but on the circuit's diligence to focus its inquiry into adverse employment actions.¹⁶ While other circuits limiting adverse actions to ultimate employment decisions advocate the benefits of a bright-line rule, the

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Eleventh Circuit has ameliorated these concerns in two ways. First, the procedural use of a burden-shifting scheme from the plaintiff to the defendant focuses the judicial inquiry and accomplishes the dual goal of limiting judicial intervention and sifting valid claims from frivolous ones.¹⁸ Second, the willingness of the court to apply clear and understandable limits to adverse action inquiries in the wake of Wideman v. Wal-Mart Stores, Inc.¹⁹ upholds the purpose of retaliation statutes.²⁰ These two factors justify the broad interpretation of an adverse action because they balance the risk of an interventionist judiciary with the workplace-reality that retaliatory

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behavior very often falls short of ultimate employment decisions.

The purpose of this Note is to place the Eleventh Circuit's broad understanding of a retaliatory "adverse employment action" in the context of an unsettled legal community. This Note begins by introducing the pertinent language and text of Title VII's discrimination and retaliation provisions. To utilize Title VII's mechanisms, the Supreme Court has adopted a burden-shifting scheme for employment discrimination cases. Part II articulates the procedures used to invoke a retaliation claim based on McDonnell

14. See Courts, supra note 3, at 241.

15. See Wideman v. Wal-Mart Stores, Inc., 141 F.3d 1453 (11th Cir. 1998).

16. See infra Part V.

17. See infra PartV.

18. See infra ?aii V.

19. 141 F.3d 1453 (11th Cir. 1998).

20. See infra Part V.

21. See infra Part V.

22. See infra Part I.

23. See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

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Douglas Corp. v. Green?⁴ In retaliation cases, the circuits define an adverse employment action in at least three ways, ranging from broad to narrow. Part III discusses the policy tension underlying the various definitions of an adverse action. Against this context of disagreement, Part IV catalogues Eleventh Circuit cases from the inception of its broad interpretation to its present implementation and refinement.²⁷ Finally, this Note posits that the Eleventh Circuit has maintained a proper role in these retaliation disputes because it has refined the scope of its broad interpretation to ameliorate the policy concerns of narrowly-construing circuits.

I. Pertinent Statutes and Their Language

The language of Title VII's general prohibition against discrimination is narrower than the language of its retaliation provision. The general prohibition against discrimination states that it is unlawful to "fail or refuse to hire or to discharge any...