Tag Archives: Retaliation

Can a supervisor’s memo be an “adverse employment action”?

Lawyers for Alief ISD succeeded in persuading the court to dismiss almost all of Rosemary Tooker’s lawsuit.  Only one nagging issue remains to be litigated, but that one provides an excellent illustration of how retaliation claims work.

The suit included two claims relating to the Fair Labor Standards Act (FLSA).  Ms. Tooker alleged that she was denied overtime pay, and that she was punished for seeking it.  Notice—those are two separate claims.  The court dismissed the overtime claim, mostly due to the plaintiff’s failure to submit evidence to support it.  But that did not mean that the retaliation claim would also be dismissed.

To prove up a retaliation claim, the plaintiff has to show three things: 1) I engaged in “protected activity”; 2) I suffered an “adverse employment action”; and 3) #1 caused #2.  The court held that Ms. Tooker had alleged and provided sufficient evidence of all three to keep her case alive. Thus the court denied the district’s Motion to Dismiss this retaliation claim.

Ms. Tooker persuaded the court that a memo from her supervisor amounted to an adverse action.  Here is the relevant part of the memo:

In addition to your issues above it has come to my attention that you have alleged that you have not been properly compensated for overtime work.  You are hereby directed not to work any overtime unless specifically asked to do so by either Wilton Curry or me. 

 Failure to follow these directives will be viewed as insubordination and/or misconduct; therefore resulting in disciplinary action up to and including a recommendation for termination.

Thus at this point, the employee has not been fired, suspended or demoted. She has been told not to work overtime without specific permission. She has been threatened with harsher action, but only if she violates this very clear directive.  Does that strike you as sufficiently “adverse”?

The court held that it was.  The court pointed out that the general rule in the district was that employees could ask to work overtime.  Here, Ms. Tooker is told that she cannot ask for it—she was to wait to be told, and you sorta get the feeling that that’s not going to happen.  The court put it this way: “Because the potential need for overtime work is sometimes only within the employee’s knowledge, an employee who is barred from seeking prior approval for overtime might effectively lose that overtime and so might be dissuaded from pursuing the protected activity.”

My point here is that the standard for “adverse employment action” is not that high.  This is one reason why plaintiffs have more success with retaliation claims than with other claims. This is a perfect example—the FLSA claim was denied; the retaliation claim lives on.

We don’t know if Ms. Tooker will ultimately succeed with this claim, but having survived the district’s Motion to Dismiss, it’s safe to say that the price of settlement just went up. So let’s be careful about retaliation claims.


 File this one under: RETALIATION

What Did the Superintendent Know, and When Did She Know It?

Kristi Dearman alleged that she lost her job because she backed the wrong candidate in the superintendent election in Mississippi.  They elect their superintendents in the Magnolia State.  And after Ms. Dearman’s candidate lost, the new superintendent reassigned Ms. Dearman to a different school.  However, her job remained the same—she was a guidance counselor.

Over a year later, the superintendent recommended Ms. Dearman’s termination due to alleged FERPA violations.  Ms. Dearman requested and was granted a hearing before the school board at which she defended herself and argued against the termination.  The board then pulled a switcheroo.  They never voted on the proposed termination, and in fact, they withdrew the recommendation for termination.  They decided to nonrenew the contract instead.

Of course, that still left Ms. Dearman unemployed, so she sued the district alleging that all of this was in retaliation for her exercise of her constitutional rights to back the wrong candidate in the election.  The 5th Circuit ruled against her. The main problem was the lack of evidence that the superintendent even knew that Ms. Dearman had backed the other guy.  Here is the critical Q and A from Ms. Dearman’s deposition:

Q. Do you have any facts to—to make you believe that Gwen Miller [the new superintendent] knew that you supported Jim Nightengale [for superintendent]?

A. No.

In a retaliation case the plaintiff has to show causation.  You have to prove that you exercised your rights and your boss punished you for it.  If your boss did not even know about your exercise of your rights, you will have a very hard time making that causal link.

The case is Dearman v. Stone County School District, decided by the 5th Circuit Court of Appeals on August 11, 2016. We found it at 2016 WL 4254373.


 File this one under: RETALIATION


The Texas Supreme Court has held that a male supervisor inviting selected female employees to lunch could not possibly be sexual harassment.  The phrase “it’s just lunch” does not show up in the court’s opinion, but that seems to be the sentiment.

Debra Nicholas, the plaintiff, did not allege that she was the target of sexual harassment.  She argued that she got fired because she opposed a discriminatory practice—the sexual harassment of staff members by a supervisor.  Piecing the facts together from the court’s opinion, it looks like this all began when Greg Flores, a recently hired VP in the company, invited a female employee to go to lunch with him. Then he invited another one.

One of these women complained about this to the General Counsel, saying it made her feel uncomfortable and harassed. If it continued, the employee warned, she would file a formal complaint.

The General Counsel notified the company CEO in an effort to head off any formal complaints. The CEO brought Ms. Nicholas, his chief of staff, into the meeting.

According to Ms. Nicholas, she and the CEO followed up by meeting with Mr. Flores, informing him of the concerns and advising him to avoid such “risky” behavior.  Ms. Nicholas reported that Mr. Flores agreed to change his behavior.

That would have been the end of it, except that three years later, Ms. Nicholas was fired.  There had been an organizational shakeup, resulting in Ms. Nicholas working as Mr. Flores’s assistant.  Then the company decided to eliminate that position as a cost cutting measure. Without interviewing Ms. Nicholas for any other position, the company just let her go.

It felt like belated retaliation to Ms. Nicholas, and she sued. The jury was convinced, awarding her almost $1,000,000 in damages.  That’s enough to justify an appeal all the way to the Supreme Court.

The Supreme Court tossed the whole thing out, ruling that the district court never had jurisdiction of the case.  Why? Because the suit was against SAWS—San Antonio Water System, which is a governmental entity owned by the City of San Antonio. SAWS, like Texas school districts, is immune from most lawsuits.  That immunity does not apply to a case properly brought under the Texas Commission on Human Rights Act.  And a case alleging that the plaintiff has been retaliated against for opposing a practice that is discriminatory under that law would be sufficient to override the immunity and give the court jurisdiction.

However, the Court held that Ms. Nicholas had not properly alleged a case that fit the statute.  She was required to allege that she opposed a discriminatory practice—not behavior that might evolve into a discriminatory practice.  In its critical ruling, the Court said: “Regardless of what Nicholas subjectively believed about Flores’s conduct, no reasonable person would believe that a handful of lunch invitations amounted to sexual harassment actionable under the TCHRA.” (Emphasis added).

In other words….it was just lunch!

Given a possible “formal complaint,” Ms. Nicholas’s warning to Mr. Flores was probably a wise and prudent precautionary measure.  But it was not a statement of opposition to a “discriminatory practice.” Thus, in legal parlance, Ms. Nicholas had not engaged in any “protected activity.” Case dismissed. There goes the big verdict.  So long to the $1,000,000.

The case is San Antonio Water System v. Nicholas, decided by the Texas Supreme Court on April 24, 2015.





A recent case from California nicely illustrates how courts analyze parental allegations of illegal retaliation.  The parent alleged that the district retaliated against him by cutting off his communication with staff members, and seeking to impose a restraining order on him.  The parent alleged that this was done to punish him for his advocacy for his child.

The school district asserted that it was merely trying to protect its staff from feeling harassed and threatened by a parent who had filed numerous complaints at all levels, alleging falsification of records and other illegal and unethical conduct.

The parent asserted that the school’s stated reason was baloney, or in legal parlance “a pretext” designed to hide the real reason.

The court held that the filing of a suit to seek a restraining order could be viewed as an “adverse action.”  Thus the court proceeded to assess whether the school district’s stated reason was the real deal, or, as the parent alleged, a “pretext” to hide its dark heart and retaliatory motive.

This gets courts into the difficult position of trying to figure out: “what was the REAL reason?”  The court acknowledged how difficult this is: “Courts have recognized that true motivations are particularly difficult to ascertain.”  Despite the difficulty, courts do this all the time.  Court cases frequently turn on “true motivations.” This is so in criminal law, where the prosecution must prove a certain mens rea, or state of mind, to make its case. It is also true in cases alleging discrimination in employment.  Was the employee fired because he performed poorly?   Or was it because he is a Muslim?

However, courts usually make these tough decisions only after hearing all of the evidence that both sides offer.  In other words, they do so after a full blown trial of the case.  Here, the school district was seeking a “summary judgment”--trying to persuade the court to dismiss the case in its early stages, prior to a full trial. The court refused, and noted that factual determinations about “true motivation” are “generally unsuitable for disposition at the summary judgment stage.”

There are practical implications here, which help explain why retaliation claims against school districts are on the rise.  Retaliation claims almost always turn, in part, on “true motivation.” The court here notes that “true motivation” will not usually be determined at the preliminary stage, but rather, only after a full blown trial. Summary judgment rarely works.  This extends the life of the lawsuit, making its defense more costly and risky. Thus the price of a potential out of court settlement goes up.  When the price of litigation and settlement goes up, retaliation claims become more attractive to plaintiffs.  Thus, retaliation claims continue to be on the rise.

The case is Lee v. Natomas USD, decided by the federal court for the Eastern District of California on February 25, 2015.  We found it at 65 IDELR 41.



Think about this one. You are a custodian at a school building, working the night shift. You have fallen on hard times. You are homeless, and have no means of transportation. Well, of course you can walk—and walking was just fine until the district moved you to another building that was 16 miles away. Would you be willing to walk 16 miles to get to work? And another 16 to get to wherever it is you lay your head down to sleep?

According to Webb v. Round Rock ISD, this is the dilemma that Crystal Webb faced. On top of that, Ms. Webb claims that her employer made this move in an effort to punish her. She had previously filed a complaint with the EEOC, alleging racial discrimination. So Ms. Webb alleged in her lawsuit that Round Rock violated federal law by punishing her for engaging in “protected activity”—filing that EEOC complaint.

We don’t know what happened to the EEOC complaint, but we have a recent decision in favor of Ms. Webb from the 5th Circuit on the retaliation claim. The case is important because it sends a clear message to employers.

The legal issue here is this: what action by the employer amounts to an act of “retaliation”? The legal term used here is “adverse employment action.” Employers can do things to employees that run the gamut from trivial to severe. On the severe end, you have termination. On the trivial, you have the boss who never says “good morning.”

But what about this case? Ms. Webb’s pay was not cut. Her duties were not changed. This was a “lateral transfer” in every sense, except for the fact that Ms. Webb had no car, and could not get to the new jobsite without a ridiculously long walk.

The federal district court ruled in favor of the district in this case, holding that “Webb’s new position did not offer less opportunities for promotion or salary increases, did not involve a greater likelihood of termination, or the like.”

The 5th Circuit reversed that decision. The Court cited Supreme Court authority for the proposition that “a lateral transfer can amount to an adverse employment action without affecting these usual terms of employment.” Burlington Northern & Santa Fe Railway v. White, 548 U.S. 53 (2006). The issue is not simply pay, or hours, or potential for promotion. The issue is whether the employer’s action was sufficiently severe to dissuade a reasonable employee from taking the protected action. In other words: if you knew that your employer would respond to your EEOC complaint by transferring you to a school that required you to walk 32 miles a day, would you be “dissuaded” from filing that complaint? Would a “reasonable employee under similar circumstances” feel that way?

The court specifically said that the circumstances of the particular employee matter. “Context matters,” the Supreme Court said in the Burlington case. Thus what is “adverse” to one employee is not “adverse” to another. The High Court offered an example: “A schedule change in an employee’s work schedule may make little difference to many workers, but may matter enormously to a young mother with school age children.”

By that logic, a transfer to another building may be no big deal to many workers, but matters a lot if you have to walk to work.

Two caveats about this case: first, the 5th Circuit ordered that this one not be “published” in the official reports, and thus it is not supposed to serve as a precedent in future cases. Second, the case is in the very early stages. Round Rock sought dismissal of the case on the theory that there was no “adverse employment action” here. The district lost that argument, but Ms. Webb now faces the burden of proving the truth of her allegations. So we shall see.

The case is Webb v. Round Rock ISD, decided by the 5th Circuit on December 11, 2014. The citation is 2014 WL 6980143.





In the school setting, what do you suppose would be the equivalent of re-assigning a sheriff’s deputy from “patrol duty” to duty at the jail?  According to the 5th Circuit, the transfer of a deputy from patrol duty to the jail can be viewed as an “adverse employment action.” That means that if the boss did it with an improper motive, the boss may have some serious legal problems.

This came up in Burnside v. Kaelin, decided by the 5th Circuit on December 9, 2014.  Mr. Burnside alleges that Sheriff Kaelin punished him for not supporting him in an election.  Burnside was the chair of a law enforcement political action committee (PAC).  In his lawsuit, Burnside alleges that Sheriff Kaelin told him that the PAC ought to support him in an upcoming election.  Burnside told Kaelin that the membership would have to vote on that, and that the sheriff would be treated just the same as the other candidates. Burnside alleges that Kaelin threatened to move him to jail duty if the PAC did not come through for him, and that Kaelin followed through with that threat just three weeks later.

Normally, a job transfer (in education, we usually call this a “reassignment) does not come under the category of “adverse employment action.”  But the court held that some job transfers do fit that description.  If the new job is “objectively worse” or “markedly less prestigious and less interesting.”  Key Quote:

Here, Sheriff Kaelin took Burnside off the streets and placed him in the jail. The complaint alleges that the transfer was “typically considered by all in [Burnside’s] position to be……a demotion.” Burnside alleged that Sheriff Kaelin himself viewed the transfer as a demotion.  One reasonable inference is that Kaelin initiated the transfer to punish Burnside for not supporting Kaelin in the 2012 election….Given the facts and reasonable inferences drawn from Burnside’s complaint, his transfer alleges an adverse employing action under 42 U.S.C. Section 1983. 

And that means that Sheriff Kaelin was not entitled to qualified immunity. Thus the suit was not dismissed and will continue, giving Burnside an opportunity to prove the truth of his allegations.

Be cautious before ordering a reassignment that might be viewed as an “adverse employment action,” even when the contract and school policy give you the authority to do so.  Check your motives.  Make sure that your decision is based on job-related, non-discriminatory and non-retaliatory reasons.