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What retaliation standard applies to employers?

published in McAfee & Taft EmployerLINC | February 7, 2019

Employee accusations of retaliation are some of the most dangerous claims to be levelled against employers. A recent appeals court decision that applies to Oklahoma employers holds that retaliation claimants must satisfy a specific standard in order to prevail in a retaliation lawsuit.

City reorganizes law department

In 2010, the City of Wichita, Kansas, was facing a financial crunch.  City Manager Robert Layton directed City Attorney Gary Rebenstorf to review the city’s law department to see if staff assignments fit Wichita’s legal needs. At the same time, Layton warned all departments of budgetary shortfalls and the need to prepare plans for the city to operate more efficiently.

As a starting point for that effort, Rebenstorf asked every prosecutor to complete a survey identifying operational and budget issues they thought were significant. Assistant City Attorney Sharon Dickgrafe was then charged with developing a plan addressing common departmental issues that surfaced in the survey responses.  She subsequently recommended a number of changes and staff reassignments, including that Chief Prosecutor Mary McDonald take a more active role in handling cases. Rebenstorf agreed with Dickgrafe’s recommendations for changes to the department and put them in motion.

Also affected by the changes was attorney Jan Jarman, who was reassigned at the suggestion of Dickgrafe. Dissatisfied with her new work assignment, in November Jarman filed a charge of discrimination with the Equal Employment Opportunity Commission. According to McDonald, five days later “Rebenstorf angrily confronted her about Jarman’s charge.” McDonald claimed that after this alleged confrontation, Rebenstorf began considering modifying her job.

In April 2011, Dickgrafe recommended eliminating the position of chief prosecutor. Rebenstorf adopted the recommendation and informed McDonald of his decision. McDonald accepted a lower-level, lesser-paying attorney position with the city’s law department.

McDonald’s unsuccessful lawsuit

McDonald later filed a lawsuit against the City of Wichita and Rebenstorf claiming, among other things, that the city and its city attorney had retaliated against her in violation of Title VII. More specifically, McDonald accused Rebenstorf of berating her and stripping her of job duties because he blamed McDonald for Jarman’s EEOC charge. At trial, a jury rejected McDonald’s claims and found in favor of Wichita and Rebenstorf.

McDonald appealed the jury’s verdict against her and argued the trial court and jury had applied the wrong standard to her retaliation claim. McDonald struck out again with her appeal when the Tenth Circuit Court of Appeals agreed with the jury’s decision and denied McDonald’s appeal.

The standard for retaliation

Retaliation claims against employers – whether brought under Title VII or any other employment law – inevitably turn on a question of the employer’s motivation. In other words: did the employer take action in retaliation for an individual’s protected activity, or was it based upon a legitimate, non-retaliatory reason? Many employment decisions come about for more than one reason, and courts and juries considering a claim of retaliation like McDonald’s end up sorting through the employer’s motivation. In rejecting McDonald’s challenge to her jury’s decision, the appeals court pointed out that, while retaliation does not need to be the sole reason for the employer’s decision, an employee accusing an employer of retaliation must demonstrate that retaliating against an employee was the “determinative factor” for the employer’s decision.

McDonald v. City of Wichita, et al., Case No. 17-3043 (10th Cir. 6/1/18)