No Retaliation Against Employees Following Title VII
Depending on the situation, it is possible for an employee to be fired for something that occurred with a previous employer. However, if an employee is telling the truth regarding Title VII or FMLA in a deposition against a former employer, the termination by their current employer may be problematic, as seen in a recent case (Patterson v. Ga. Pac., LLC, No. 20-12733, at *15 (11th Cir. July 5, 2022).
Facts of the Case:
- Ms. Patterson worked for the Memorial Hermann Health System in human resources. Her job required her to manage employee complaints and offer advice to management regarding such matters.
- In seeking to fire three women who were pregnant, Ms. Patterson expressed concerns that the company was violating FMLA rights, and that a Title VII lawsuit might arise.
- The company disregarded her advice, and the women indeed filed a lawsuit under Title VII.
- Ms. Patterson left the company and was hired as senior HR manager with Georgia-Pacific.
- Management was concerned over an effort to unionize workers at Georgia-Pacific, and a meeting was scheduled to discuss.
- Ms. Patterson contended she could not attend the meeting on the proposed date because she was giving a deposition. Her deposition had been noticed in the Memorial Hermann case, and it was favorable for the women and against her former employer.
- When Georgia-Pacific learned about the deposition and circumstances, the company felt she was no longer a good fit in her management role and fired her. Her supervisor stated that the deposition against her prior employer “made things clear.”
- She filed a lawsuit against Georgia-Pacific contending violation of Title VII by firing her.
- Georgia-Pacific’s actions had a chilling effect on Title VII given she was engaged in protected activity – telling the truth about another Title VII matter.
- The federal district court disagreed with Ms. Patterson and granted summary judgment to Georgia-Pacific.
- The judge thought that Title VII’s anti-retaliation provision was inapplicable because the provision “… does not apply to HR managers acting in the course of their employment duties, even if their actions would otherwise be protected activity.”
- The court relied on an unpublished opinion from the 11th Circuit which approved that very exception.
- The other reason the court relied on was that an employee’s actions involving a former employer were not protected conduct for purposes of applying the anti-retaliation provision to a current employer. Things looked good for Georgia-Pacific.
- On appeal, the 11th Circuit noted that its unpublished opinion did agree with a Title VII management exception. However, it disregarded that opinion as not binding nor precedential under 11th Circuit rules.
- The Appeals Court then distinguished the management exception, which does exist in other areas of labor law.
- It held, “The manager exception did not originate in the context of Title VII, but in cases involving the Fair Labor Standards Act, or 29 U.S.C. § 215(a)(3).” However, the language in Title VII was different, and thus, the management exception under the FLSA could not apply given the clear language in Title VII. “Title VII’s opposition clause protects any employee who ‘has opposed any practice made an unlawful employment practice,’ 42 U.S.C. § 2000e-3(a). Congress did not copy and paste the language from FLSA into Title VII, so we should not simply copy and paste a rule from FLSA into Title VII.”
- The 11th Circuit thus reversed and remanded the case back to the district court. Interestingly, the opinion was also substituted for a prior opinion provided just a few days before. There was a “non-dispositive error” in that opinion pointed out by the Equal Employment Opportunity Commission (EEOC), which appeared in the case as amicus curiae.
It is good to see the 11th Circuit trying to get it right both on major and minor issues. This opinion resets the pendulum, which had perhaps swung a bit too far. This opinion gives fair notice to all that employers should not retaliate against any employee, management or otherwise, who is trying to follow Title VII or FMLA in their current job or in a past job.