Friday, December 1, 2017

Husband and Wife Retaliated Against for Husband’s Participation in Protected Conduct 20 Years Ago

Quote of the Day
"It's probably best not to mention the racial incident of the past in the formal human resources review, so people don't think you can't let go of the past"- a senior vice president of Mount Aloysius, a college being charged with retaliation.
It’s probably best not to discuss an employee’s past, protected activity, let alone in writing.

The Gist of the Case
Mr. and Ms. Brugh, a husband and wife employed at the same Pennsylvania college, filed suit against their employer, alleging that the college violated Title VII of the Civil Rights Act. Mr. and Ms. Brugh, both fired in 2012, claim that the college terminated them because Mr. Brugh participated in racial discrimination lawsuits which were filed against the college approximately 20 years earlier.  The college argued that the Brughs failed to state a claim for retaliation; the statute of limitations had past; and the retaliation claims were barred because the claims has already been judged and litigated (res judicata and collateral estoppels).  A Pennsylvania district court rejected the college’s motions to dismiss or strike, allowing the Brughs to proceed with their retaliation and discrimination suits.

The Factual Details 
Mr. Brugh began employment with Mount Aloysius in 1985 and by 1996 he was the college’s Director of Career Services, as well as Assistant Dean of Students.  In 1992, the college decided not to hire an African American man applying for a coaching position after it learned that he was married to a white woman.  Following this decision, the college terminated its Athletic Director, who filed suit alleging that he was terminated in retaliation for opposing racial discrimination regarding the college’s decision not to hire the African American applicant.  The African American applicant also filed suit against the college for discrimination. Mr. Brugh, who immediately objected to the college’s decision regarding the African American candidate, participated as a witness in both the discrimination and retaliation lawsuits filed against the college.

Years later, in 2011 and 2012, Mr. Brugh filed complaints with the school, alleging conduct that qualified as discrimination.  Around that same time, college administrators began discussing Mr. Brugh’s involvement in past discrimination claims and he was demoted soon after from the position of Assistant Dean of Students.  When Ms. Brugh met with administration to discuss his complaints, administration told him that he was unable to let go of a "ten-year-old problem," alluding to his participation in the discrimination cases.  The college’s president openly criticized Mr. Brugh, stating that Mr. Brugh had hired an attorney and the president speculated that Mr. Brugh was going to allege that he was demoted and discriminated against because he is a man.

Following Mr. Brugh meeting with the college’s administration, his attorney sent a letter to the college’s board of trustees, alleging that the college discriminated and retaliated against Mr. Brugh.  Mr. Brugh was terminated that same year; the college stated that he was terminated because of the letter Mr. Brugh’s attorney sent to the college and because Mr. Brugh’s relative revoked a donation to the college.  Ms. Brugh, who worked in various capacities at the college, including as the Game Clock Operator for basketball games, was also terminated without explanation.

What did the Court Say?
The court found that the Brughs sufficiently pleaded facts which gave rise to a reasonable inference that they engaged in protected activity (for instance, the letter the Brughs’ attorney sent to the college, which alleged that the college unlawfully discriminated and retaliated against Mr. Brugh for his participation in alleged racial discrimination that occurred in early 1990s) described conduct which qualified as a good-faith and reasonable belief that a Title VII violation occurred. Even though Mr. Brugh participated in discrimination cases approximately 20 years ago, college administrators discussed Mr. Brugh’s participation in those cases in 2011 and 2012, casually connecting their terminations to Mr. Brugh’s past, protected conduct.

Take Away
It is best for employers to let go of their employees’ participation in all protected conduct.