Employers are faced with tough decisions every day with regard to their employees that could significantly affect the operation of their business. Such decisions include hiring the right employees, firing problematic employees, choosing which employees should be promoted, and decisions concerning demotion of employees. Employers have to be especially careful when making adverse employment decisions, such as firing or demoting, because such decisions could open the door for potential retaliation claims against the employer if the subject employee is a member of a “protected class.” Title VII, specifically 42 U.S.C. § 2000e–3(a), makes it illegal for “an employer to discriminate against any of his employees … because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.” The ADEA contains a similar anti-retaliation provision. See 29 U.S.C. § 623(d). Peter Mavrick is a Fort Lauderdale employment attorney who has substantial experience with retaliation claims under both Title VII of the Civil Rights Act of 1964 (“Title VII”) and the Age Discrimination in Employment Act (“ADEA”), both of which have been discussed at length in prior articles. (See Title VII and ADEA). The requirements an employee must show to bring a retaliation claim under Title VII and/or the ADEA, as well as what an employer needs to demonstrate to defend against such a claim, were recently analyzed by the Eleventh Circuit Court of Appeals in Trask v. Sec’y, Dept. of Veterans Affairs, 822 F.3d 1179 (11th Cir. 2016).
In Trask, the plaintiffs were female pharmacists in their 50s who had worked at the Department of Veterans Affairs (“VA”) for over ten years. In 2010, the VA announced a nationwide treatment initiative that resulted in the reorganization of several VA treatment facilities, including the facility where the plaintiffs worked. The reorganization involved the creation of new pharmacist positions to be filled internally and the elimination of certain pre-existing pharmacist positions, including the positions that the plaintiffs held. The plaintiffs were not selected to fill the new pharmacist positions, and as a result filed discrimination claims with the Equal Employment Opportunity Commission (“EEOC”) based on gender and age. Thereafter, the plaintiffs were reassigned to new positions and job duties. Despite not affecting plaintiff’s pay or job grades, the plaintiffs believed their reassignments resulted in the loss of “prestige and responsibility.” Based on the foregoing, plaintiffs filed a lawsuit against the VA for, inter alia, retaliation under both Title VII and the ADEA, but the trial court granted summary judgment in favor of the VA on these claims. Plaintiffs subsequently appealed.
According to Trask, the basic framework for retaliation claims under Title VII and the ADEA requires the plaintiffs to first establish a prima facie case of retaliation by proving that: (1) they engaged in statutorily protected conduct; (2) they suffered an adverse employment action; and (3) the adverse action was causally related to the protected expression. Once the plaintiffs have established a prima facie case, the employer then has an opportunity to articulate a legitimate, non-retaliatory reason for the challenged employment action. Thereafter, the plaintiffs have the ultimate burden of proving by a preponderance of the evidence that the reason provided by the employer is a pretext for prohibited, retaliatory conduct. The appellate court first stated that it was questionable whether the plaintiffs could establish a prima facie case based on their reassignment because the reassignment did not result in any decrease in pay or grade. Furthermore, the court found that the reassignment was not directly caused by the protected activity. Nevertheless, the court held that even if plaintiffs had demonstrated a prima facie case, the trial court’s grant of summary judgment in favor of the VA was proper because the VA had articulated a legitimate, non-retaliatory reason for the reassignment. Specifically, the VA asserted that the reassignment was needed because the reorganization eliminated plaintiffs’ prior positions and the plaintiffs were not chosen to fill the new pharmacist positions. Moreover, the plaintiffs did not make any argument that the VA’s articulated reason was pretext for prohibited, retaliatory conduct.