Reporting Retaliation

Presented by Susan P. Segal Gust Rosenfeld, PLC.

What is Retaliation?
Materially adverse employment decision. Caused by . . . Employees engagement in a protected activity.

Stated another way

To state a prima facie case of retaliation, a plaintiff must show that (1) he or she engaged in activity protected under the statute, (2) the employer imposed an adverse employment action, and (3) there was a causal connection between the two actions. Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1504, 1064 (9th Cir. 2002).

What is a protected activity?

Reporting violation of the law; or A matter of public policy. Management issues may or may not be protected activity. Bouma v. Trent (Az. 2010) Federal District court decision by the Honorable Neil Wake. content is not of public concern when it deals with individual personnel disputes and grievances. employee upset about salary schedule. internal power struggle. [W]hile the First Amendment invests public employees with certain rights, it does not empower them to constitutionalize the employee grievance. Desrochers v. City of San Bernadino, 572 F.3d 703, 711 (9th Cir. 2009).

Reprisal
Term is used in the Arizona Whistleblower Act: It is prohibited for an employee who has control over personnel actions to take reprisal against an employee for disclosure of information of a matter of public concern which the employee reasonably believes evidences: 1. A violation of any law. 2. Mismanagement, a gross waste of monies or an abuse of authority. A.R.S. 38-532(A).

Reprisal
Reprisal means to take a personnel action, the result of which is adverse to an employee. A.R.S. 38-531(6).
Causation requirement.

Where do we find definition of what is adverse employment action?

One place to go is Title VII: The U.S. Supreme Court has ruled that the anti-retaliation provision of Title VII of the Civil Rights Act of 1964 prohibits employers from engaging in actions that a reasonable employee would find materially adverse, which includes conduct that would "dissuade a reasonable worker from making or supporting a charge of discrimination. Burlington Northern and Santa Fe Ry. Co. v. White, 126 S. Ct. 2405 (U.S. 2006).

Federal and State Claims: What are materially adverse actions?

Actions such as firing and demoting are adverse employment actions for purposes of a retaliation claim.

Examples of gray areas that are fact specific.

Transfer with no change in pay. Effective demotions with no change in pay. Bad evaluations with no consequences.

Examples of conduct that has not been found to be retaliation

Lyons v. England, 307 F.3d 1092, 1118 (9th Cir. 2002), (mediocre performance evaluation not made available to other potential employers and unaccompanied by any meaningful change in work assignments); Brooks v. City of San Mateo, 229 F.3d 917, 929 (9th Cir. 2000) (ostracism by co-workers); McAlindin v. County of San Diego, 192 F.3d 1226, 1238-39 (9th Cir. 1999) (refusing to hold a job open), amended by 201 F.3d 1211; Nunez v. City of Los Angeles, 147 F.3d 867, 875 (9th Cir. 1998) (badmouthing employee); Nidds v. Schindler Elevator Corp., 113 F. 3d 912, 919 (9th Cir. 1996) (transfer where salary unaffected).

Cases in Arizona
Under employer policy stating that performance, skill and/or service would be considered in termination situations, employers termination decision based on service alone was legitimate, as required to rebut employees Title VII retaliation action against employer. Tempest v. Motorola, Inc. 92 F.Supp.2d 973 (D.Ariz.1999).

Cases in Arizona

Employee failed to show causal connection between his protected activity and his discharge, and thus failed to establish a prima facie case of retaliatory discharge under Arizonas Employment Protection Act. Cox v. Amerigas Propane, Inc., C.A.9 (Ariz.) 2006, 211 Fed.Appx. 585, 2006 WL 3611816, Unreported.

What laws prohibit retaliation?

Federal Laws: Civil Rights Act of 1964. Title VII. Title IX. ADA. IDEA. Other laws. State Laws: Whistleblower Act-A.R.S. 38-531 et. seq. Employee Protection Act-A.R.S. 23-1501 et. seq.

GPS Policies that Prohibit Retaliation

These are in addition to the law: GBA. JB.

GPS Policies that Provide Mechanisms for Reporting Retaliation

Should not be tied to one particular form. But the forms provide a way to hone in on the relevant information. Following the chain of command is a best practice. Role of administration. Role of Governing Board. As a policy maker. As a quasi judicial body. What if the complainant maintains that the person doing the retaliation is their supervisor?

GPS Policies and Laws that Provide Mechanisms for Reporting Retaliation
GPS Policies. BHC. GBK. KEH. Grievance Procedures in the Certified and Support Staff Manual. State Laws. Arizona Whistleblower Act and the Employee Protection Act. Arizona Civil Rights Act. Federal Laws and Agencies. Examples: Equal Employment Opportunity Act. ADA. United States Department of Education Office of Civil Rights (OCR).

BHC
Official communication between the Board and employees will occur as follows: An employee will first communicate on school or employment-related matters at the administrative level. Any employee who exhausts the opportunity of discussing a matter at the various administrative levels may then communicate in writing with the Board on the matter. No anonymous communication will be considered by the Board. Any employee who wishes to address the Board in the employee's capacity as a parent, District resident, or individual, rather than as an employee, may do so by following the procedures in policies BEDH and BHD. Official communications, policies, directives, Board concerns, and Board action(s), as appropriate, will be communicated to employees by the Superintendent.

GBK

Effective communication between District employees, the administrative staff, and the Board is essential for proper operation of the schools. The Governing Board, therefore, authorizes the Superintendent to establish a grievance procedure for employees as the prescribed means of resolving grievances at the earliest date and the lowest possible administrative level. Please refer to the latest Memorandum of Understanding. The decision of the Governing Board is final.

KEB
The Board recognizes that there may be instances in which a member of the general public (defined as a person who is not a student, faculty member, staff member or other employee of the District) has a concern or complaint about an individual employed by the District. The Board directs the administration to adopt a procedure for the handling of such complaints when the Board has not already adopted a more specific procedure for handling the particular type of concern or complaint at issue.

Grievance Procedures
Certified. Informal Procedure. Formal Procedure. Support Staff. Informal Procedure. Formal Procedure.