Employer Retaliation:
If you have a clear shot, take it

Oklahoma Employment Law Letter - January 2009

By Sam R. Fulkerson

Disciplining, much less terminating, an employee who has engaged in legally protected activity is tricky.  For example, if one of your employees files an Equal Employment Opportunity Commission (EEOC) charge and then blatantly violates company policy, you’re suddenly presented with a Hobson’s choice.  You can either discipline the employee for the violation and face a possible retaliation claim or ignore the violation for fear the employee will allege retaliation, thus undermining policy and allowing the employee to act with impunity.  But you are well within your legal rights to discipline an employee who has engaged in legally protected activity so long as you can establish the violation and can show that you would have made the same decision in any event. 

Legally protected activity:  participation in EEOC charge
Bernadine Vaughn, who is African American, worked for Epworth Villa, a retirement facility in Oklahoma City.  In 2004, she alleged that her employer discriminated against her because of her age and race, and she filed an EEOC charge.  Vaughn alleged she was disciplined for making errors in patient medical records, while a younger white employee was not disciplined for the same thing.

After she filed her charge, Vaughn provided the EEOC with unredacted medical records of a patient, including a “medication sheet” detailing the use of narcotics. She contended the records contained errors similar to those for which she had been disciplined.  In fact, the errors  had been made by a younger white employee who had not been disciplined. 

After Epworth Villa learned about Vaughn’s disclosure of medical records, it reported her to the Oklahoma Department of Health, which advised it to investigate the matter.  During the investigation, Vaughn admitted she’d copied and released the records.  She also agreed that one of her job duties was practicing patient confidentiality.  As a result, Epworth Villa terminated Vaughn while her EEOC charge was pending.  The stated reason for termination was copying patient medical records without authorization and against company policy and then disclosing them to a third party (i.e., the EEOC).

In response, Vaughn filed suit against Epworth Villa, asserting that she was terminated in retaliation for her participation in the EEOC process.  Epworth Villa asked the court to dismiss the case without a trial, and the district court complied, finding that Vaughn hadn’t engaged in legally protected activity when she copied medical records.  That’s because “dishonest or disloyal conduct” in the course of legally protected activity (e.g., making an EEOC charge) isn’t protected “unless the employee had no other reasonable choice in order to advance the EEOC claim.” 

The district court held there were several alternatives that Vaughn could have pursued (e.g., redacting patient names or submitting an affidavit about the records). 

Participation vs. opposition
On appeal, the Tenth Circuit disagreed with the district court’s determination that Vaughn hadn’t participated in legally protected activity but still found in Epworth Villa’s favor.  The court explained that when analyzing a retaliation claim, legally protected activity falls into two categories:  participation or opposition.  The “participation clause” under Title VII provides that you may not retaliate against an employee for participating in any manner in any type of proceeding under Title VII.  The clause is intended to ensure that Title VII protections aren’t undermined by retaliation against employees who use a legal process to protect their rights.

The distinction between the participation clause and the opposition clause is significant because the scope of protection is different.  The court explained that activities under the participation clause are essential to the legal machinery established by Title VII.  Therefore, the scope of protection for activity under the participation clause is broader than that for activity under the opposition clause.  Federal courts are especially strict when reviewing retaliation claims because they don’t want employers to do anything that would keep employees from filing a claim.

The Tenth Circuit went on the say that the exceptionally broad protection of the participation clause does not place an obligation on an employee to resort only to “honest and loyal conduct in advancing a claim unless the employee proves that it is necessary to resort to other means.”  In other words, any participation, even dishonest and disloyal participation, is legally protected.

The court then examined Epworth Villa’s asserted reason for Vaughn’s termination.  It found that Vaughn essentially admitted to her violation, but her argument was that her conduct was legally protected and, therefore, couldn’t serve as a basis for termination.  The court disagreed, finding that even legally protected activity can serve as a lawful basis for termination when the employer can show that the activity violated company policy (or applicable laws) and that other employees were treated the same for similar conduct. 

The court stated that “in the absence of any evidence that similarly situated employees were treated differently, it is perfectly plausible that Epworth Villa would terminate Vaughn — whether it was required to or not — for intentionally disclosing the unredacted medical records rather than for some retaliatory purpose.”  The court then held that the younger white employee’s policy violations were different because they didn’t involve confidential patient information. 

Vaughn also contended that she had direct evidence of retaliation because Epworth Villa admitted that it terminated her for intentionally disclosing the protected medical records to the EEOC.  But the court held that Epworth Villa’s statement could easily be interpreted to mean that it would have terminated Vaughn for intentionally disclosing such records to any third party, not just the EEOC; therefore, it wasn’t direct evidence of retaliatory intent.  Vaughn v. Epworth Villa, 537 F.3d 1147 (10th Cir., 2008).

Although Epworth Villa prevailed in this case, not all employers are so lucky.  When deciding whether to discipline an employee who has engaged in legally protected activity, involve more than one level of management and, ideally, consult outside legal counsel.  But as this case shows, if you have a clear shot, you really can take it.  Just be sure you can back it up.

Any questions can be directed to sam.fulkerson@mcafeetaft.com.