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Cravath, Swaine & Moore, LLP

JIM WOOLERY WRITES ABOUT OVER-LAWYERING FOR DIRECTORSHIP MAGAZINE
Cravath partner James C. Woolery's article, entitled "The First Thing We Do, Let's Fire Some Lawyers", appeared in the November 2006 issue of Directorship.

11-01-2006

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Buckingham, Doolittle & Burroughs, LLP

JODI S. DIEWALD JOINS BUCKINGHAM, DOOLITTLE & BURROUGHS, LLP
Buckingham, Doolittle & Burroughs, LLP (“BDB”) is proud to welcome Jodi S. Diewald, as an Associate in the Columbus office. The addition of Ms. Diewald strengthens the Real Estate & Construction practice.

Before joining the law firm, Ms. Diewald served as Associate General Counsel and Vice President of Global Structuring and Distribution for a national, full service real estate company involved in the investment, acquisition, construction, rehabilitation, development, management and operations of multi-family housing properties throughout the country. She has extensive experience drafting, negotiating, and structuring capital investments by Fortune 500 companies into guaranteed and non-guaranteed investment funds involving all housing tax credits.

Ms. Diewald earned her J.D. from the Capital University Law School (1999). In addition, she attended The Ohio State University, Fisher College of Business and received her B.S. in Business Administration and Real Estate and Urban Analysis (1996). Ms. Diewald is a member of the American (Affordable Housing, Real Property, Probate and Trust Law Sections and the Franchise Law), Ohio State, and Columbus Bar Associations.

Ms. Diewald currently resides in Columbus, Ohio.

The Columbus office of Buckingham, Doolittle & Burroughs, LLP employs more than 50 legal professionals and support staff that represent several major organizations in the region including Ohio Health Care Association, Roadway Express, Inc., Wendy's International, Columbus Regional Airport Authority and Tartan Golf Company, LLC. The attorneys in Columbus specialize in various practice areas, such as Business Law, Employment Law, Entertainment & Sports Law, Health & Medicine, Intellectual Property, Litigation, Real Estate and Construction, Trusts & Estates and Workers' Compensation Defense.

Since 1913, Buckingham, Doolittle & Burroughs, LLP has served individuals and businesses in virtually every industry and trade. The firm provides a full range of legal services to clients, from sole proprietors to multinational corporations, governmental bodies, foundations and public organizations. Offices are located in Akron, Canton, Cleveland, and Columbus, Ohio, and Boca Raton and West Palm Beach, Fla.

11-01-2006

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Seyfarth Shaw LLP

Christopher DeGroff Published in The E-Disovery Standard
Christopher DeGroff’s article, “Selecting and Working with an E-Discovery Vendor: Lessons from the Field,” was published in the Fall 2006 issue of The E-Discovery Standard, Applied Discovery's quarterly newsletter. A follow up to his first article in the Summer 2006 issue, which discussed essential steps to take when interviewing potential e-discovery vendors, this piece cites common mistakes for counsel to avoid when putting together an effective e-discovery team. The two main mistakes, which Chris discusses in detail, are failing to plan ahead and police the data gathering and failing to plan data processing and review protocols. The key to avoiding problems, he advises counsel, is to educate themselves about products and services offered by e-discovery vendors, as well as the e-discovery process itself.

11-01-2006

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Seyfarth Shaw LLP

Gerald Skoning Published in Crain's Chicago Business
In an opinion piece (“How about a type of Sarbanes-Oxley for Uncle Sam?”) published in the October 23 issue of Crain's Chicago Business, Gerald Skoning proposes that the federal deficit should be treated by Congress as a national scandal and that proper accounting procedures should be ensured on a national level. He notes:

“Sarbanes-Oxley, passed in 2002 in response to the wave of corporate corruption scandal, mandates tightened auditing procedures for all public companies, verified financial reports and a company's CEO and chief financial officer vouching for the accuracy of financial reports. It's meant to restore investor confidence that was badly shaken. And although Corporate America has grumbled about the mandated reporting and auditing requirements and attendant compliance costs averaging $4.4 million per company with revenues of $5 billion or more, Sarbanes-Oxley has worked well. Taxpayer confidence in government reports was also shaken by bogus numbers and erroneously assumptions. A Sarbanes-style law covering the federal government might sweep the smoke-and-mirrors and voodoo out of government accounting. If the president and secretary of the treasury were required to certify government financial reports under threat of criminal prosecution, we would probably witness the government equivalent of a corporate ``restatement of earnings'' quite frequently…It's time for Congress to lead by example in the financial accounting arena. A government version of Sarbanes-Oxley should be enacted to ensure truth in government accounting and help restore the faith of taxpayer-investors in federal budget realities.

11-01-2006

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Seyfarth Shaw LLP

Ken Dolin published in National Law Journal
Ken Dolin’s article, “Oakwood Healthcare,” on the recent NLRB ruling that set new guidelines on union status of supervisors was published in the October 30 issue of the National Law Journal. He explains the definition of “supervisor” as holding the authority to engage in any one of 12 supervisory functions under the NLRB’s section 2(11), and requiring the use of independent judgment. Formerly, the burden to prove supervisory authority was on the party asserting it. The new set of cases, however, offer guidance to construe supervisory status. The NLRB has been accused of reaching too far trying not to construe supervisory status too broadly because the employee who is deemed a supervisor is denied rights which the Act is intended to protect. As a result, the board, in Oakwood Healthcare, re-examined and clarified its interpretation of the term ""independent judgment.”

Ken notes: “Oakwood is perhaps the Bush board's most significant decision because supervisory status is critical in many labor relations contexts. This decision appears to have been carefully drafted to address concerns frequently expressed by the Supreme Court and many circuits, and it eschews the results-oriented approach favored by the dissent and often criticized by the courts. While the employer actually lost two of the three cases decided by the board under its new standard, the clarity of the opinion should help practitioners on both sides of the issue better assess the viability of their position, as well as better advocate their positions on the issue of supervisory status. Practitioners seeking to prove supervisory status must still be prepared to establish ""independent judgment,"" now fully defined, and link the putative supervisor's exercise of independent judgment to any of the enumerated functions listed in § 2(11); ""responsible direction,"" by showing that the employer holds the putative supervisor accountable for the performance of the work of the employees he or she directs; and ""assign"" responsibilities, by showing the designation of significant overall duties, work location and work time, and not by merely presenting ad hoc instructions that employees perform discrete tasks.

11-01-2006

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Ropes & Gray, LLP

Ropes & Gray elevates 11 to partnership
John P. Bueker concentrates his practice in areas of complex commercial and business litigation, including securities litigation, shareholder derivative suits, corporate governance matters, contract disputes, and government enforcement actions. John is a member of the Litigation Department in Boston.

Sona De is experienced in all aspects of patent litigation, including ANDA and antitrust matters. Sona is a member of the Fish & Neave IP Group in New York.

Michael G. Doherty represents investment advisers, mutual funds and business development companies, and private investment vehicles, such as private equity funds and hedge funds, in their regulatory and transaction matters. Michael is a member of the Corporate Department in New York.

Jason E. Dunn specializes in all aspects of real estate law, including acquisitions, dispositions, development, leasing, financing, and joint ventures. Jason is located in Boston and is a member of the Corporate Department.

Leigh R. Fraser focuses on issues related to derivatives, hedge funds, and mutual funds. Leigh is a member of the Corporate Department and is located in Boston.

Ching-Lee Fukuda focuses primarily in the area of patent litigation involving a broad spectrum of technologies. Ching-Lee is a member of the Fish & Neave IP Group located in New York.

Jennifer T. Harding specializes in federal income taxation of corporate and partnership transactions. Jennifer is located in Boston and is a member of the Tax & Benefits Department and the Corporate Department.

Christopher C. Henry specializes in the area of private equity. Christopher is a member of the Corporate Department and is located in New York.

David M. McIntosh advises a wide range of companies, investors, and institutions in intellectual property and corporate matters. David is located in Boston and is a member of the Corporate Department and the Fish & Neave IP Group.

William M. Shields specializes in private equity, securities & public companies, technology, and venture capital. Will is a member of the Corporate Department located in Boston.

James E. Thomas focuses on regulatory and transactional matters relating to the financial services industry. James is a member of the Corporate Department located in Boston.

11-01-2006

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Nelson Mullins Riley & Scarborough LLP

Burlington Northern & Santa Fe Railway v. White: A Guide through the Uncharted Waters of Adverse Employment Actions
Imagine that you are employment counsel for a national employer who has to deal with alleged employment discrimination claims throughout the country. These claims have spread like wildfire in the company after a former employee received a small settlement from an Equal Employment Opportunity Commission (“EEOC”) proceeding and somehow, word of the ""confidential"" settlement spread through the company rumor mill. Several workers in various states now have filed or threatened to file EEOC charges. Your client representative has met with the company’s human resource managers, department supervisors, and direct supervisors to determine the best strategy for resolving these conflicts. The consensus is that there is no basis for any of the claims and that most of the complaining employees are trying to play the ""litigation lotto"" to obtain monetary compensation.
Your client potentially would like to make changes in employment status (i.e., demotion or termination) for individuals pursuing unsubstantiated claims, although there is concern that such actions will be considered retaliatory (which is exactly what the former employee claimed after she was demoted and subsequently fired after making a protected complaint). The client contacts you to make sure it understands the law on adverse employment actions in the various circuits; after you provide the client with a litany of information on different cases and a circuit-by-circuit analysis of adverse employment actions, the client hangs up the phone, now even more confused. You hang up the phone frustrated that you could not provide a uniform solution for the client’s explosive problem—you have advised that employees in California may have more of a potential claim for retaliation than employees in South Carolina and that employees in New York may not be in the same position as employees in Texas. You essentially have no consistent answer to a consistent problem.

Such a scenario was the state of affairs before the United States Supreme Court provided some clarification in its June 22, 2006, decision in Burlington Northern & Santa Fe Railway Company v. White, 2006 U.S. LEXIS 4895 (June 22, 2006).

What Constitutes an Adverse Employment Action
The issue of adverse employment actions arises most often with retaliation claims, which can include claims under the Age Discrimination in Employment Act, 29 U.S.C. §§ 621, et seq., the American with Disabilities Act of 1990, 42 U.S.C. §§ 12101, et seq., the Civil Rights Act of 1866, 42 U.S.C. §§ 1981, et seq., the Civil Rights Act of 1871, 42 U.S.C. §§ 1983, et seq., and the Sarbanes-Oxley Act of 2002, 18 U.S.C. §§ 1514A, et seq. The confusion over what constitutes an adverse employment action has also reached the mandates of the Equal Pay Act of 1963, 29 U.S.C. §§ 206(d), et seq. and the Family and Medical Leave Act of 1993, 29 U.S.C. §§ 2601, et seq. Most states additionally have their own anti-retaliation statutes, including whistleblower protections, exceptions to handbook provisions, and protection to employees for “public policy” reasons.

However, the cornerstone of most of the litigation surrounding adverse employment actions has been under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq. Title VII states that ""it shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment, for an employment agency, or joint labor-management committee controlling apprenticeship or other training or retraining, including on-the-job training programs, to discriminate against any individual, or for a labor organization to discriminate against any member thereof or applicant for membership, 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 U.S.C. § 2000e-3(a) (emphasis added).

Title VII gives a claimant a private cause of action for retaliation. One consistency among the circuits has been in defining the elements necessary to establish retaliation under Tile VII: (1) that the plaintiff was engaged in an activity protected by Title VII; (2) that the employer subjected the plaintiff to an adverse employment action; and (3) that there is a causal link or connection between the protected activity and the adverse employment action. See, e.g., King v. Town of Hanover, 116 F.3d 965, 968 (1st Cir. 1997); Steiner v. Showboat Operating Co., 25 F.3d 1459, 1464–65 (9th Cir. 1994); & Wideman v. Wal-Mart Stores, Inc., 141 F.3d 1453, 1454 (11th Cir. 1998). If the plaintiff can establish a prima facie case, the burden then shifts to the employer to show legitimate, non-retaliatory reasons for the employment decision. The plaintiff then has the ultimate burden to show that the employer's reasons were pretextual in nature.

Simply stated, an adverse employment action is one that is materially adverse to the employment, such as a refusal to hire, firing, demotion in pay or job title, diminished job responsibilities, or loss of company benefits, just to name a few. What is not so simple is defining that term in light of previous decisions of the twelve United States Courts of Appeals.


Conflicting Circuit History
The United States Courts of Appeals have not been uniform in their retaliation standards. Though three adverse employment action standards have emerged from the courts, with a fourth standard being used by the EEOC, historically, there has been no consistent ""rule"" in retaliation cases. The three Circuit court standards can be classified as either: 1) a stringent analysis of what constitutes an adverse employment action; 2) an intermediate analysis of what constitutes an adverse employment action; or 3) a lenient analysis of what constitutes an adverse employment action. The EEOC has created a ""deterrence"" standard, which defines an adverse employment action as ""adverse treatment that is based on a retaliatory motive and is reasonably likely to deter the charging party or others from engaging in protected activity."" Ray v. Henderson, 217 F.3d 1234, 1242–43 (9th Cir. 2000).


* Stringent Adverse Employment Action Standard

The most stringent analysis of what constitutes an adverse employment action has been given by the Fourth, Fifth and Eighth Circuits. These Circuits have found that adverse employment actions are limited to ultimate employment decisions. Unless a plaintiff can show that an ultimate employment action has been made—such as a termination or a demotion—a retaliation claim generally would fail in these circuits. “Title VII was not designed to address every decision made by employers that arguably might have some tangential effect upon those ultimate [employment] decisions.” Dollis v. Rubin, 77 F.3d 777, 78–82 (5th Cir. 1995). See also Mattern v. Eastman Kodak Co., 104 F.3d 702, 707 (5th Cir. 1997) (""ultimate employment decisions . . . such as hiring, firing, granting leave, discharging, promoting, and compensating""). Thus, in these circuits, only those employment actions that “rise to the level of an ultimate employment decision [are] intended to be actionable under Title VII.” Ledergerber v. Stangler, 122 F.3d 1142, 1144 (8th Cir. 1997).


* Intermediate Adverse Employment Action Standard

The intermediate standard for defining what constitutes an adverse employment action considers whether the employment decision materially affects the terms and conditions of employment. The Second, Third and Sixth Circuits have followed this approach. Examples of materially adverse changes include ""termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices . . . unique to a particular situation.” Terry v. Ashcroft, 336 F.3d 128, 138 (2d Cir. 2003) (quoting Galabya v. N.Y. City Bd. of Edu., 202 F.3d 636, 640 (2d Cir. 2000)). The adverse employment action must be an action that ""is more disruptive than a mere inconvenience or an alteration of job responsibilities.” Fairbrother v. Morrison, 412 F.3d 39, 56 (quoting Terry, 336 F.3d at 138). Accord Hollins v. Atlantic, 188 F.3d 652, 663 (6th Cir. 1999). Thus, though not requiring an ultimate employment decision to have occurred, the intermediate standard gives some leeway to retaliation claims based on the material affect on an employee's overall position.


* Lenient Adverse Employment Action Standard

The least stringent approach (and also the most widely followed approach) has been used by the First, Seventh, Ninth, Tenth, Eleventh and D.C. Circuits. These circuits have taken a broader view of what constitutes an adverse employment standard, essentially finding that a plaintiff does not have to show that an ""ultimate"" employment decision was made. These circuits consider whether the employer's actions would have been ""material to a reasonable worker."" Rochon v. Gonazales, 438 F.3d 1211, 1217–18 (D.C. Cir. 2006). “[T]he existence of an adverse employment action is determined on a case-to-case basis and does not include ‘a mere inconvenience or an alteration of job responsibilities.’” Medina v. Income Support Division, 413 F.3d 1131, 1136 (10th Cir. 2005) (quoting Heno v. Sprint/United Mgmt. Co., 208 F.3d 847, 857 (10th Cir. 2000)). Thus, whether or not an action constitutes an adverse employment action for purposes of a retaliation claim must be determined on a case-by-case basis, using both a subjective and an objective standard. Gupta v. Florida Bd. of Regents, 212 F.3d 571, 587 (11th Cir. 2000). Courts in these circuits have found actions that would not constitute adverse employment actions in other circuits actionable—such as unwarranted negative job evaluations, acquiescence in harassment by other employees, or unsubstantiated oral reprimands. See Randlett v. Shalala, 118 F.3d 857, 862 (1st Cir. 1997).

These varying approaches to adverse employment actions are not always hard and fast rules. In fact, the courts often have intertwined and merged these analyses. See, e.g., Manning v.Metropolitan Life Ins. Co., Inc., 127 F.3d 686, 692 (8th Cir. 1997) (combining Fifth and Second Circuit standards in holding that ""ultimate employment decision"" includes ""tangible changes in duties or working conditions"" that constitute a ""material employment disadvantage""); Ray v. Henderson, 217 F.3d 1234, 1242-43 (9th Cir. 2000) (adopting the EEOC deterrence test in finding that an employment action is sufficiently adverse under Title VII if it would be “reasonably likely to deter [employees] from engaging in protected activity;” the language of Title VII does not “limit what type of discrimination is covered, nor does it prescribe a minimum level of severity for actionable discrimination”).

Burlington Northern & Santa Fe Railway Company v. White
Against this back drop of opposing standards amongst the circuits, the United States Supreme Court recently decided Burlington Northern & Santa Fe Railway Company v. White, 2006 U.S. LEXIS 4895 (June 22, 2006). Burlington seeks to settle much of the conflict regarding how adverse employment actions are defined. The Supreme Court granted certiorari to decide two core issues: 1) whether Title VII’s anti-retaliation provision confines actionable retaliation to activity that affects the terms and condition of employment only; and 2) how harmful the adverse employment action must be to fall within Title VII’s scope of protection. Id. at 1.

In the opinion delivered by Justice Breyer, with which Chief Justice Roberts and Justices Stevens, Scalia, Kennedy, Souter, Thomas and Ginsburg concurred, the Court resolved the first question by holding that “[t]he scope of the anti-retaliation provision extends beyond workplace-related or employment-related retaliatory acts and harm."" Id. at 26. Regarding the second issue, the Court may have brought clarity to the circuit court confusion by concluding that the “provision covers those (and only those) employer actions that would have been materially adverse to a reasonable employee or job applicant."" Id. at 8 (emphasis added). (It should be noted that Justice Alito filed an opinion concurring in the judgment, but disagreeing with the majority’s interpretation of the anti-retaliation provision of Title VII).

In Burlington, Sheila White was employed with Burlington Northern & Santa Fe Railway Company (“Burlington”) in the Maintenance of Way Department in Tennessee. Ms. White originally was hired as a “‘track laborer,’ a job that involves removing and replacing track components, transporting track material, cutting brush, and clearing letter and cargo spillage from the right-of-way.” Id. at 9. Later, because of her experience in operating forklifts and a vacancy in a forklift position, Ms. White’s roadmaster, Marvin Brown, assigned her to operate a forklift. Id.

Shortly after being moved to the forklift position, Ms. White made a formal complaint to Burlington regarding her immediate supervisor, Bill Joiner. Id. Ms. White complained that Mr. Joiner had made insulting and inappropriate remarks to her in front of her male colleagues. Id. Although Burlington found Ms. White’s claims substantiated and ordered Mr. Joiner to attend sexual-harassment training sessions, Burlington informed Ms. White that she was being relieved of her forklift duties and being reassigned to her previous track laborer duties. Id. at 10. Mr. Brown informed Ms. White that the reassignment came after several complaints from Ms. White’s co-workers that the forklift job should be given to a “more senior man” because the forklift job was “less arduous” and a “cleaner job.” Id. Ms. White also was indefinitely suspended without pay following a disagreement with Mr. Joiner wherein he accused her of being insubordinate. Id. at 11.

Ms. White subsequently filed three charges of discrimination with the EEOC. The first of the three charges claimed that the reassignment of her job duties was gender-based discrimination and in retaliation for her complaining about Mr. Joiner. Id. at 10. The second charge asserted a claim for retaliation for what she characterized as activities Mr. Brown took to place Ms. White “under surveillance” in her daily activities. Id. The third and final complaint was based upon Ms. White’s indefinite suspension. Id. at 11. Burlington ultimately determined that Ms. White had not been insubordinate and reinstated her to her position after thirty-seven days of suspension, awarding her back pay for that time as well. Despite Burlington’s corrective measures, after exhausting her administrative prerequisites, Ms. White filed a Title VII action claiming, among other things, retaliation in the reassignment of job duties and suspension. Id.

A jury returned a verdict in Ms. White’s favor for $43,500.00 in compensatory damages. A divided Sixth Circuit panel reversed the judgment; however, the full Court vacated the panel’s decision after hearing the matter en banc and ruled in favor of upholding the original judgment. Nonetheless, although uniform in its holding, the en banc Court disagreed over the proper adverse employment action standard to apply. Id. at 12.


* Beyond the Workplace

On writ of certiorari, the United States Supreme Court in wrestling with the interpretation of Title VII’s anti-retaliation provision emphasized the difference in the language between the substantive provisions and the retaliatory provision of the statute. Specifically, the Court focused on the words and terms enclosed in the substantive provision such as “hire,” “discharge,” “compensation, terms, conditions or privileges of employment,” “employment opportunities,” and “status as an employee.” According to the Court, these words and terms qualify and limit Title VII’s reach to altered conditions in the workplace. Id. at 17. When juxtaposing this substantive provision language with the anti-retaliation provision language, which is effectively silent as to workplace limiting language, the Supreme Court held that the intent of Congress was to further perpetuate the distinction between the two provisions:
There is strong reason to believe that Congress intended the differences that its language suggests, for the two provisions differ not only in language but in purpose as well. . . The substantive provision seeks to prevent injury to individuals based on who they are, i.e., their status. The anti-retaliation provision seeks to prevent harm to individuals based on what they do, i.e., their conduct.

Id. at 18. The Court added that the statute’s retaliation protections could not be secured by focusing solely upon harm that occurs in the workplace, because an employer can retaliate against an employee outside of the workplace. Id. at 19. See, e.g., Rochon v. Gonzales, 438 F.3d 1200, 1213 (D.C. 2006) (noting that the FBI’s retaliation against its employee ""took the form of the FBI's refusal, contrary to policy, to investigate death threats a federal prisoner made against [the agent] and his wife""); Berry v. Stevinson Chevrolet, 74 F.3d 980, 984, 986 (10th Cir. 1996) (finding actionable retaliation where the employer filed false criminal charges against an employee who had complained about discrimination).

The Court further held that its conclusion that the purposes of Title VII’s substantive and anti-retaliation provisions are different is not inconsistent with precedent. The Court noted that its decision in Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998) did not deal with situations outside the scope of what an employer is vicariously liable for in dealing with the actions of its supervisors. Id. at 21. Moreover, the Court distinguished Ellerth by pointing out that it did not analyze Title VII in the context of the anti-retaliatory provision. Id. at 22. The Court also dismissed Burlington’s argument that it would be “anomalous” to read the anti-retaliation provision as providing broader protection to victims of retaliation than the protections afforded to the victims of Title VII’s substantive provision. The Court reasoned that numerous acts, such as the National Labor Relations Act, evidence Congress' intent that anti-retaliation provisions of statutes not be solely limited to the conduct of the prohibited substantive provision of the act. Id at 24.


* A “Materially Adverse” Objective Standard

Because various circuits throughout the country have differed in their interpretation and utilization of standards in determining when retaliatory conduct becomes actionable, the Burlington Court seized the opportunity to set a uniform standard. In doing so, the Court chose to follow the Seventh and D.C. Circuits: a plaintiff must show that a reasonable employee would have found the challenged action “materially adverse,” “which in this context means it well might have ‘dissuaded a reasonable worker from making or supporting a charge of discrimination.’” Id. at 26 (citing Rochon, 438 F.3d at 1219 (quotation omitted)). The standard was selected by the Court with the purpose of distinguishing trivial harms from significant harms that create actionable claims. Id. at 27. Indeed, the Court reiterated that Title VII “does not set forth ‘a general civility code for the American workplace.’” Id. (quoting Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 80 (1998)).

An employee's decision to report discriminatory behavior cannot immunize that employee from those petty slights or minor annoyances that often take place at work and that all employees experience. See 1 B. Lindemann & P. Grossman, Employment Discrimination Law 669 (3d ed. 1996) (noting that ""courts have held that personality conflicts at work that generate antipathy"" and ""'snubbing' by supervisors and co-workers"" are not actionable under § 704(a)). Id. at 27.

In connection with materially adverse harms, the Court implemented a “reasonable employee” standard to set objective criteria. Id. The Court reasoned that an objective standard is judicially administrable and avoids the strains associated with determining “a plaintiff’s unusual subjective feelings.” Id. at 28. The Court created the standard in general terms, to allow for the unique factual scenarios that accompany each given act of retaliation. “[A] legal standard that speak[s] in general terms rather than specific prohibited acts is preferable, for an ‘act that would be immaterial in some situations is material in others.’” Id. (quotation omitted).


* Application of the Burlington Standard to Ms. White

Applying the new standard, the Court held that there was sufficient evidence to support the jury’s verdict on both of Ms. White’s retaliation claims. Although Burlington argued that Ms. White’s reassignment was not retaliatory conduct because both her current and previous duties fell within the same job description, the Court explained that almost every job involves duties that are considered less desirable than other duties for the same job. Although reassignment of job duties is not automatically actionable, reassignment of job duties to ones that are considered arduous or less desirable as judged by a reasonable person in the plaintiff’s position considering all of the circumstances can be actionable. Id. at 32.
Here, the Court determined that the jury had before it sufficient evidence to suggest that the reassignment from the forklift duties to the track laborer duties was a shift from a more prestigious job to a more arduous job. Id. at 33. Moreover, the Court reasoned that a jury could reasonably conclude that reassignment of responsibilities would have been materially adverse to a reasonable employee. Id. The Court also concluded that Burtlington’s attempt to avoid a retaliation claim by paying Ms. White back pay did not negate what a reasonable person in similar circumstances would consider a serious hardship to prevent a Title VII violation from being found. Id. at 36.
Practical Tips after Burlington
It will be intriguing to see Burlington’s impact throughout the circuits and whether a more uniform approach is taken in deciding retaliation cases. The confusion brought on by the three varying circuit standards and the EEOC standard should hopefully dissipate, as cases post-Burlington should lend themselves to more consistency. However, there are several steps employers and employment counsel should now take in light of Burlington.
First, as in any employment situation, always document an employee's file. If the employee’s work performance is low or if other behavioral issues have been occurring, it is easier to overcome arguments about an adverse employment decision being made with a documented history. Keep records of all evaluations, write-ups, and attendance problems, as retaliation claims can often be deterred by a well-documented file.

Employers also should be cautious about what they write and say to an employee (or what is overheard by other employees), especially with e-mail correspondence. You do not want exhibit #1 in an employment lawsuit to be correspondence from a manager or supervisor which lends credence to an employee's allegations. If there is uncertainty about how a message should be conveyed, contact employment counsel. A simple phone call to your attorney today can save a phone call from an EEOC investigator or plaintiff’s counsel tomorrow.

Also, if the company realizes that some error or mistake in the handling of an employment decision has been made, take steps to rectify the situation before it gets out of hand. A tail between the legs and an ""I'm sorry, let me fix this"" is always less expensive than a federal court lawsuit.

If not already in place, employers should consider commissioning an investigation committee (internal or external) to deal with allegations of misconduct, harassment, or the like. Not only is this smart from a legal and procedural standpoint, but companies often can learn from such investigations what are the root causes of recurring issues. A written policy on such investigations also shows that employers are serious when it comes to dealing with issues in the workplace.

Finally, employers should be courteous and show appreciation and respect for employees for the good work that they do. Employees are less likely to file an EEOC charge or to make allegations when they feel they are a valued part of the company. The same rumor mill that circulates negative information throughout the company can also spread positive compliments. A kind word today can combat allegations of an adverse employment decision tomorrow.

Derrick L. Williams is an associate with the law firm of Nelson Mullins Riley & Scarborough in the Columbia, South Carolina, office. He practices in the areas of business litigation, franchise and distribution litigation, and employment litigation. Christian Boesl is an attorney with Collins & Lacy in Columbia, South Carolina. Mr. Boesl's practice concentration is litigation, including complex defense, products and premises liability, trucking, and employment law.

11-01-2006

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