Workplace Retaliation: Don't Shoot the Complainer -- What Employers and Employees Need To Know. Presenter: Colleen Regan >> TAJAUNA: Good afternoon, everyone, and welcome to the Web cast, Workplace Retaliation, Don't Shoot the Complainer: What Employers and Employees Need To Know. My name is Tajauna Arnold, and I am with ILRU. I will be moderating today's Web cast and voicing your questions to the presenter. You can submit questions any time throughout this Web cast, however, I want to encourage you to submit questions you may already have at the beginning of this Web cast. You can submit questions by clicking the submit question button at the bottom of your RealOne Player screen or simply address your question to Web cast@ilru.org. Questions will be posed to the presenter upon the presenter's requests. Today's Web cast has a PowerPoint presentation posted as a handout. To follow along or to utilize for notes, you may want to print out the presentation now. Additionally, if anyone has technical difficulties during this Web cast, please call us at (713)520-0232 and dial 0 for the operator. This number is both voice and TTY capable. As previously mentioned, today's Web cast is workplace retaliation, don't shoot the complainer. What employers and employees need to know. It is being presented by Colleen M. Regan, a partner in the Los Angeles office of McGuireWoods LLP. As a lawyer and national law firm her practice covers advising and counseling clients on a variety of employment-related issues, including compliance with California and federal wage and hour antidiscrimination, antiharassment and leave laws. She has also litigated a variety of employment cases in state and federal courts, including actions involving claims of wrongful termination, sexual harassment, age, gender, race, and disability discrimination and retaliation. She also has extensive experience defending against employee class actions. Advising employers on how to avoid retaliation in the workplace including claims stemming from treatment of disabled individuals is a growing part of this practice. Colleen has spoken and written on employment law issues in a variety of forums. She has earned her undergraduate degree from St. John's college in Santa Fe, New Mexico. And with that, Colleen, I turn the Web cast over to you. >> COLLEEN: Thank you very much. I would like to speak today about workplace retaliation in part because it is a growing area of employment law. It has become increasingly common in California as well as nationwide. In order to understand workplace retaliation, where we need to start is to understand that there is a distinction between discrimination in the workplace and retaliation. Many people confuse the concepts and it's important that we keep them distinct in our minds. Many laws, federal and state, prohibit discrimination in a variety of contexts, including in employment, and that means that the employer may not distinguish, differentiate or treat unfairly any employee on the basis of a protected classification such as race, gender, national origin, disability. And those laws have been in place for a long time and have been the subject of much litigation over the years. Many of those laws also prohibit retaliation when somebody complaints about something and the employer reacts by taking a punishment or an adverse action against that person. So with that separation of concepts in mind, I would like to talk today about what workplace retaliation is, how it frequently presents itself, give you a little understanding of the employee's perspective in a situation that might give rise to retaliatory conduct, how employers may regard situations and discuss some recent cases and take your questions at the end. First, I'd like to examine what is the dictionary meaning of retaliation. I think the impulse toward retaliation is probably as old as human kind. It means to get back at, to get even with, to get avengeance for or to return like for like or evil for evil, especially. And it's this kind of retaliatory impulse that we want to keep in mind as we talk about it today. There is such a thing as legal retaliation in the workplace. We have to keep in mind that generally employers do have a right to control conduct in their workplace. They have a right to have a code of conduct, a Code of Ethics, rules, procedures, standards for which their employees have to work to. And if the employee doesn't live up to those standards, then they can be retaliated against in the form of discipline or termination or other consequences for bad behavior. What we want to talk about today though is illegal retaliation and to set the framework for our discussion, the next little bit of my presentation is going to talk about the legal standards and definitions that apply to illegal retaliation in the workplace. In a nutshell, an employee will suffer illegal retaliation if he or she is harmed as a consequence of exercising a legally protected right. Now, the sources of the rights can be found in a number of different places. There are many explicit authorities such as statutes that give an employee a right to be protected from retaliation, examples of these might be Title VII in the federal context which prohibits discrimination on the basis of race and national origin, age and gender. Also the Americans with Disabilities Act has an explicit protection against being retaliated against. There are also whistleblower laws and labor codes of various jurisdictions that give employees the right to be protected from retaliation. Basically, wherever the government or courts want to encourage people to be able to come forward and report suspected wrongdoing by their employer, or to not kill a person's right to exercise legal rights they have, they will empower the employee or protect the employee against retaliatory conduct by the employer. The law provides that an employer may not take punitive or adverse action against an employee in response to the employee engaging in protected activity. This terminology is important and it's been the subject of a great deal of litigation over the years essentially trying to define what's meant by protected activity and adverse action and how can you tell when the adverse action was in response to the exercise of some protected activity. So I'd like to take a few minutes to focus on each of these concepts so we have a clearer understanding of what we're talking about when we get into a discussion of the cases. Generally, protected activity by employees arises when employees express concerns about issues in their workplace, they participate in an investigation that might be ongoing concerning alleged wrongdoing, or they have taken some action in their own personal lives that overlaps with the workplace and causes some concern for the employer. So with that kind of context, let's talk for a minute about what protected activity means. Basically, an employee is engaging in protected activity when he or she opposes an illegal activity or a suspected illegal activity by the employer, or makes a complaint about something in the workplace, participates in an investigation or asserts a protected right. Now, opposing illegal activity can take a number of different forms. It basically means that the employee has objected to what they believe might be illegal conduct. For exam, they complain to their supervisor that they think they are being subjected to unfair discrimination on the basis of their gender or race. They think that maybe the payroll department isn't paying them properly under the wage and hour laws, so they voice an objection to that. They complain that health and safety laws aren't being followed properly or that the company is polluting illegally or those are examples of kinds of opposition to illegal activity or suspected illegal activity that the employee might engage in. They might also become a whistleblower and report a suspected wrongdoing to a government agency. They might go to the EEOC and file a complaint outside of the company they are complaining to an arbiter or an agency that would investigate. So anybody who engages in any of the kind of reporting, complaining, agitating, opposition to what they believe in good faith to be illegal or improper conduct by the employer is going to be a protected person. You're also protected if you participate in any way in an investigation either internally or by an outside authority. That could mean that you are interviewed and give a statement. It could mean that you're just viewed as siding with a complaining employee. You're good friends with somebody who has made a complaint and the employer kind of lumps you together in the employer's mind. If you're in that category, you're protected. And you're also protected if you're asserting a protected right. That is if you have a right as an employee to have a leave of absence under the Family and Medical Leave Act. The employer can't retaliate against you for having exercised the right to take that leave. You're protected if you require an accommodation in employment due to a disability and you request a reasonable accommodation. The employer may not retaliate against you or take action against you because you've made that request. There are a number of different rights that are protected, both under federal and state law. In California, for example, employees have the right to take off time to vote or to serve as a juror. All employees are entitled to participate in union organizing activity. These are examples of protected rights that fall under protected activity. So we've kind of taken a quick look at who are the employees that might be subject to retaliation or might be in a category where retaliation could come up. So now let's look for a second at what's meant by adverse action. Adverse action basically means a negative change in employment, for example, you know, the most obvious is somebody gets terminated or fired or having exercised a protected right, but it can mean a range of things. It could be just a negative evaluation following the protected activity. It could be subtle. It could be someone is suddenly not given support as they used to be given for performance of their job duties. In one case it was exclusion from a weekly meeting that was important to everybody in the department understanding their job for that week. This person began to not be invited to the weekly lunch meeting. That was considered to be an adverse action. And it doesn't have to necessarily be conduct that affects the employee's work life. If in the discrimination context, if you're complaining you've been discriminated against because of an protected classification, the adverse action you suffer as a result of discrimination does have to be a direct effect on a term or condition of your employment. But the courts have interpreted the retaliation prong of this to be broader so that conduct that the employer takes against the employee to punish them or kill them from exercising a protected activity right may be outside the workplace. For example, in earlier this year, there was a case that was decided where an employee -- there was an employee of the FBI and he complained of racial harassment by his supervisors and the FBI was found to have retaliated against him by refusing, contrary to FBI policy, to investigate death threats that had been made against him and his wife. Well, that wasn't a term or condition of his employment that was being affected, but it was outside of his work life, but it was a consequence or a punishment for him having complained of racial harassment. Similarly, there was another case where the employer filed false criminal charges against a former employee who had complained about discrimination. So the courts have held that any conduct that would cause a reasonable employee to hesitate or refrain from complaining about illegal activity or exercising a protected right -- it will be construed to be adverse action. It is the element that the adverse action must actually cause harm to the complaining person or the protected person. So in order to make out a cause of action for retaliation, though, an employee has to be able to prove a causal connection. The adverse action by the employer was actually as a result of the employee having engaged in protected activity. They have to prove it wouldn't have happen but for the protected activity. In law, propositions can be proved either directly or indirectly in the context of retaliation, you're very rarely going to have a manager who admits or supervisor who admits that his or her motive was to retaliate against a complaining person. So most often courts and juries will be asked to look at circumstantial evidence of a retaliatory motive and one of the most important pieces of circumstantial evidence is proximity in time. How soon after the exercise of the protected activity was the adverse consequence? Other things that will be looked at are inconsistencies in the management's explanation for why the adverse action happened, evidence of lying or covering up, no record whatsoever of why the adverse action was taken, it could be other evidence -- indirect evidence of retaliatory motive. And the motive toward retaliation does not have to be the only motive for why the adverse action was taken. As long as it's a motivating factor in why the employee was punished or suffered adverse consequences, it can be enough to support a cause of action for retaliation. And just to finish the description of the legal standards, the courts employ what's called a burden shifting analysis, and it refers to the burden of proof on the elements that we've just been discussing. If an employee files a lawsuit for retaliation, the first thing they have to prove is that they suffered a material adverse action in response to having exercised protected activity. If they can put in enough evidence that that happened to them, the burden then shifts to the employer, and the employer responds by saying, well, even if all this stuff happened as the plaintiff has said, we had a legitimate, nondiscriminatory business reason for doing what we did, and it wasn't because of retaliation at all, it was because of these other legitimate business reasons that this happens to the employee. Once the employer does that, then the burden shifts back to the employee who has to put on more evidence to show that what the employer has said is just an excuse. It's just a pretext. It's not the real reason. The real reason was retaliatory. So these cases always come down to very fact intensive, case by case analysis of what happened and why and what's the persuasive value of the evidence and the testimony that's offered on each of these points. Now, an employer can defend against a claim of retaliation quite successfully in many cases by showing that the adverse consequence that happened to the employee had nothing to do with the employee having exercised a protected right or having made a complaint of illegal activity. And the most persuasive way for an employer to prove that is to have evidence that shows that the adverse action was going to happen any way against the employee. That is, the negative review had already been written. The decision to terminate the employee had already been made and documented prior to the time that the employee made the complaint or asked for the leave of absence or asked for the accommodation or whatever the protected activity was. If the employer can prove that, then the employee is going to have a very, very difficult time of proving that there was actual retaliation involved in the incident. So that's kind of the legal analysis -- legal elements portion of this discussion. I wanted to include a section on kind of the psychology of retaliation as I've observed it over the years and give you a little bit of discussion about from the employee's perspective and from the employer's perspective, how retaliation claims arise and what gives them legs. I have found in my practice that employees -- at least in California particularly -- seem to know their rights pretty well and they want to enjoy their rights. They have a right to their rights, and they know it. And they want to be treated fairly and they not only personally want to be treated fairly, but they want all their coworkers to be treated fairly. And that contributes when everybody is being treated according to the law to good morale and they will be bothered or concerned if they observe something in the workplace that they think is not right, if they think something is unfair or illegal or is a safety violation, you know, they're going to bring it up and they may want to take advantage of their own legal rights by having a family medical leave or pregnancy disability leave in California or many of the other rights that we've already discussed. On the other hand, they might also fear retaliation if they complain. How is it going to affect me if I complain, will my supervisors come down on me? Will it turn up in my next review in they may also have a legitimate fear of retaliation. And if they then experience an adverse action after having suspected or voiced complaints about some conduct in the workplace, the natural human reaction is to feel injured and disappointed and this may lead ultimately to filing a charge or a lawsuit in response to any adverse action that they suffer. From the employer's perspective, most employers in my experience want to do the right thing. They want to obey the law. They want to treat their employees fairly. They may be totally unaware of the conduct that the employee is complaining about and be happy to hear about it and know about it so they can correct it. Many times, because although retaliation claims have been litigated for several years now, there are still companies and employers who don't realize that retaliation is unlawful. And they don't understand the parameters under which retaliation can be an actual issue. Also from the employer's point of view, there is some legitimacy I think to the fear of employees of complaining because they fear retaliation because no employer really likes to hear complaints. I mean, who wants to hear complaints? It's an interruption. It's something that slows down production or slows down worklife and once an investigation -- excuse me -- once a complaint of a harassment or discrimination is made, it must be investigated and that's time-consuming and distracting and takes people's attention away from their work and it can also affect the workplace morale quite severely. Then if it turns out that the complaint was groundless, the employer oftentimes supervisors may feel betrayed by the person who complained, that they didn't give them enough benefit of the doubt or that they were personally being attacked and thus the urge on the part of the supervisor to get even or show the employee what the consequences will be, and this is particularly difficult in workplaces where there have not been education given to the supervisors about what the law is on retaliation. So how do employers deal with the prospect of having retaliation claims arise in their workplace? The first thing they should do is establish a policy against retaliation and it should be in writing and it should be published to all of their employees. And their managers and supervisors should be educated and given special training as to what can constitute retaliation. There should be an avenue set up for employees to voice complaints, either anonymously or through a suggestion box or encouraged to actually discuss issues with their supervisors before they become problems or big problems. Pragmatically speaking, an employer should be very careful about imposing any kind of adverse action on an employee close in time after the employee has voiced the complaint or engaged in some other protected activity. Finally, the employer must keep accurate and complaint documentation of the entire incident from the moment of the complaint or request for accommodation or leave or whatever the requested protected activity is through the conclusion of the adverse action. If there is an explanation on the employer's side for why they did what they did, they are infinitely more likely to be able to persuade a jury down the road that the reason they took the adverse action was for legitimate business reasons rather than for retaliatory reasons. I would like now to talk about some examples and cases of places where or areas where retaliation has been litigated heavily in both state and federal court. There is a huge number of circumstances that could give rise to claims of retaliation. A simple example would be where a doctor works in a clinic, complains to the management of the clinic that the workplace doesn't have enough supplies and treatment rooms are not kept clean. The response from management is to fire the doctor. That's an obvious clear example of retaliation. A less clear example might be the same doctor working in the same clinic makes the same complaints, but the response of management is to transfer him to another clinic 20 miles further from his home, particularly with today's gas prices, that could definitely be an adverse action against that doctor and for any other -- also because of the distance and it wasn't his choice and so forth. That could constitute adverse action, actionable adverse action. The two pronged comments of retaliation that have been most heavily litigated are defining what is protected activity and what is adverse action. And there are some recent cases -- very recent cases in both of these areas which I'd like to talk about for a few minutes now. The first one is Burlington northern and Santa Fe railroad v. White which was handed down just last month by the United States Supreme Court. This was a case that looked closely at the adverse action prong of our analysis. It was decided under Title VII, which is the federal antidiscrimination statute and it actually changed the standard for what constitutes adverse action in many federal circuits in this country. The questions that this case posed were -- is actionable retaliation confined to activity that affects the terms and conditions of employment and how harmful must the adverse action be in order to be actionable? And the answers that the court gave were that antiretaliation legislation does not -- is not confined to the actions and harms that might be suffered in the workplace, and the employer's actions in order to be harmful and actionable must be harmful to the point that they could well dissuade a reasonable worker from making or supporting a charge of discrimination. The facts in the Burlington northern case were Sheila White, the complaining party, the plaintiff, was the only woman in Burlington Northern Tennessee yard in Memphis, Tennessee. She had been hired as a track laborer, which is a laborer who basically goes along the tracks and clears the brush, picks up trash, makes sure the tracks are free of debris, but Ms. White had previous forklift driving experience and shortly after she was hired by Burlington Northern, the worker who had previously worked the forklift left and Ms. White was assigned to operate the forklift. Some of her coworkers were not happy about that because the forklift job was a much more desirable job than the track laborer job and about two months later Ms. White complained to the Burlington officials that her immediate supervisor, a man named Bill, had repeatedly told her that women should not be allowed to operate forklifts and he made insulting and inappropriate remarks to her in front of her coworkers. Bill was disciplined and he was ordered to attend sexual harassment training. But a few days later, the road master, Marvin Brown, told Ms. White that Bill had been disciplined, but he also said that he was going to remove her from the forklift position because her coworkers had complained that the forklift operator job should go to a more senior man because it was a cleaner and easier job than the job of track laborer. Ms. White filed a complaint with the Equal Employment Opportunity Commission claiming that her reassignment from forklift duty back to track laborer duty was gender discrimination and it was in retaliation for her having complained about Bill’s inappropriate sexual harassment. Two months later, she filed another retaliation charge claiming that her road master, Marvin Brown, had placed her under surveillance and was monitoring her daily activities. And a few days later, Ms. White and her new supervisor had a disagreement and that was reported to the road master who immediately suspended Ms. White without pay. There has an inquiry into whether she had been insubordinate or not and it was determined that she had not been. Finally, Burlington reinstated her and awarded her back pay for the 37 days that she was suspended without pay. She then filed another retaliation charge based on the suspension and basically eventually filed a Title VII retaliation lawsuit. The jury found that she had in fact suffered retaliation and awarded her $43,500 in damages. Burlington then appealed, and Burlington's arguments were that the reassignment from forklift duty back to track laborer duty, and the 37 day suspension without pay were not adverse actions under Title VII because they did not constitute a materially adverse change in the terms and conditions of her employment. Well, the Supreme Court disagreed and it held that unlike the substantive provision of Title VII, which prohibits discrimination, the antiretaliation provisions of Title VII don't limit its language to terms and conditions of employment. The court said as long as the employer's action, in this case transferring her back to from forklift duty back to track laborer duty and putting her on a 37 day unpaid suspension -- as long as that employer action actually caused harm to the employee, the scope of antiretaliation protection extends beyond workplace related or employment related acts or harm. And if the action by the employer causes material harm and would prevent a reasonable employee from engaging in the protected activity, that is reporting the sexual harassment that Bill was directing toward Ms. White, then they are going to be able to state a cause of action for retaliation under Title VII. And the court said that the jury should have been allowed to decide that reassignment from the forklift duty back to track laborer was materially adverse to a reasonable employee because the track laborer job was dirtier and harder and the fact that she had to live for 37 days without income, not knowing whether she could ever return to work, and this fell over the holiday period, was also a materially adverse action by the employer. So the upshot of the Burlington Northern case is that it's going to be easier for employees to make out an adverse action under Title VII cases at least because they will just have to show that a reasonable employee would have hesitated or refrained from seeking whatever protected activity they wanted to do, which is whether it was to request a leave of absence or an accommodation for a disability or complain about illegal or suspected illegal activity in the workplace. The next case I want to discuss is from California, the California Supreme Court case that came down in August of 2005. And it's called Yanowitz vs L'Oreal USA. This case was ground breaking in California and it was kind of confusing in the holdings that it came out with -- confusing from the point of view of employers, but it looked at another prong of the analysis which is what constitutes protected activity under the California fair employment and housing act. Alyssa Yanowitz was a regional sales manager for L'Oreal in northern California and the Pacific northwest. She -- her job was to interface with retail outlets such as department stores in malls where L'Oreal would have sales associates stations to try and sell their fragrance products. They sold designer fragrances in the retail store environments, and Ms. Yanowitz had worked for L'Oreal since 1981. So she was a long term employee. And she had done very well. She had been the regional sales manager of the year in 1997. She consistently got above average reviews, and she was -- you know, a well regarded, long term employee. She reported to the vice-president of sales for designer fragrances and his boss, both of whom worked out of New York. In the fall of 1997, the two supervisors from New York, Richard and Jack, toured the Ralph Lauren Polo fragrance installation at Macy's in the Valley Fair Shopping Center in San Jose, California because they were rolling out a new line of product. And after the tour, Jack, who was the more senior New York executive, told Ms. Yanowitz to terminate a sales associate he had seen in the store, a L'Oreal sales associate. She happened to be a dark skinned female and he said he did not find the woman to be sufficiently attractive. He wanted fair skinned blondes and he directed Ms. Yanowitz to get him somebody "hot" to sell the fragrances in the Macy's. Ms. Yanowitz did not terminate the sales associate. On a return trip to the store, Jack discovered that the sales associate had not been terminated. So he told Yanowitz again that he wanted that sales associate terminated and he pointed to another woman in the store who was young and -- a young, attractive blonde girl and he told Yanowitz, "Get me one that looks like that." At this point, Yanowitz asked him for an adequate justification or reason for firing the associate. And Jack did not give her an answer. Several times over the next few weeks, Jack asked Ms. Yanowitz whether the sales associate had been fired yet, and each time she asked him for a legitimate business justification for firing her. Especially since she had learned that this particular sales associate was among the top selling sales associates for men's fragrances in the whole Macy's chain. Ultimately, Yanowitz never fired the sales associate; but she also never complained to her supervisor or to the H. R. department at L'Oreal that Jack was pressuring her to fire the sales associate. And she also never told Jack that she thought his order was discriminatory. So she never voiced to L'Oreal in anyway, other than refusing to fire the sales associate and asking Jack for a legitimate business reason why she should do so. She never did anything else to inform L'Oreal that she objected to Jack's order to terminate the sales associate. When in fact in her own mind, she believed that the order was discriminatory, that Jack was discriminating against the woman because she wasn't attractive enough and Ms. Yanowitz thought that was against the law. So what happened in response to the fact that Yanowitz refused to carry out the dismissal order? About a month later, the New York executive began soliciting negative information about Ms. Yanowitz from her colleagues and from people she supervised. They audited her travel records and her expense reports. They summoned her to New York and called her on the carpet supposedly about her poor performance. Jack then held a meeting back in California where he yelled at her in front of all of her staff and screamed obscenities at her and then they began putting out memos criticizing her performance. Finally, a few months later, Ms. Yanowitz quit and went out on stress disability because she was suffering so much stress in her job. Ultimately she was terminated. She sued for discrimination on the basis of her sex, her age -- she was 53 at the time -- and her religion, but she also alleged that L'Oreal had retaliated against her for refusing to fire the female employee who Jack considered to be unattractive. Now, the court held with respect to the discrimination claims that Yanowitz didn't have any, but with respect to the claim that she was retaliated against, the court held that she presented evidence that she reasonably believed that Jack's order to fire that sales associate constituted sex discrimination. She really and truly reasonably believed that that was discriminatory, that he was ordering her to fire her because she wasn't attractive enough. Thus, her protest of the order by not obeying it did constitute protected activity. So long -- the court also held that as long as the employee reasonably believed that the conduct they were opposing was discriminatory, that a retaliation claim could be brought even if it turned out that the conduct was not actually prohibited by law. In fact, Jack probably did have the right to order her to terminate that sales associate because under certain circumstances employers or companies have the right to set attractiveness and grooming standards for people they employ, depending on what kind of a job it is that's being filled. So it may not have actually been illegal for Jack to order Ms. Yanowitz to fire the sales associate, but as long as Yanowitz reasonably believed that it was a discriminatory order, it fits within the definition of protected activity for this FEHA law in California. Finally, the California Supreme Court held that if the evidence showed that the employer knew that the reason Ms. Yanowitz was opposing the conduct was because she reasonably believed it to be discriminatory, she did not have to actually tell L'Oreal of her belief. The employee does not have to use buzz words or legal terminology when opposing discrimination; but if there is enough evidence by the totality of comments and actions that the employer knew that the employee was objecting to the conduct because they thought it was discriminatory, that will be enough. And here, Ms. Yanowitz' refusal to carry out the firing of the sales associate, coupled with her repeatedly asking Jack for a legitimate business reason for the firing, could be enough to put an end to the realm of protected activity because the employer knew the reason she was objecting. Now, the reason this case is troubling to employers is because it makes employers fear that they have to be able to read the minds of their employees and understand why an employee is objecting to carrying out certain requests by their supervisors. And, therefore, the employer has to be very careful any time an employee hesitates or shows reluctance to carry out a directive of their supervisors, I guess the common sense approach would be well ask them why they are objecting so then at least you know and then you can respond to it; but from the -- this case made a big impact in California when it came down last year because it kind of through employers into a quandary of feeling like they had to be mind readers. I think actually when you read the case closely, it doesn't make an employer have to be a mind reader, but it does put an employer on notice that they have to be very attuned to their employee's reactions to things and keep the communication lines open so they can have a clearer understanding of what's in the employees' minds with respect to certain -- any activity that they might be opposing. There are a couple of other cases I wanted to touch on briefly. One is the Wright vs. CompUSA out of the First Circuit in 2003. Mr. Wright was a district sales manager for CompUSA. He had worked there for two years. He was diagnosed with attention deficit disorder and he began taking medication for it and a few months later he told his supervisor that he had that condition. About a year later, he was assigned to a new general manager who was apparently had a different management style and soon there after, Mr. Wright began experiencing severe stress and anxiety on the job. And this made his ADD symptoms flair up. He had a panic attack at work, and then his doctor recommended that he take a leave of absence, which he did. When he came back from the leave, he asked for a transfer away from the new general manager which was denied. He then asked to be allowed to work from home, and that request was denied. He then went back to work under restrictions that were requested by his doctor, which included allowing him to set for himself how much time it would take to complete given tasks. He was allowed -- or asked to be allowed to avoid early morning meeting times and to have work assignments given to him in writing so that they were clear. The new general manager ignored the doctor's suggested 4608 accommodation measures. Then a few days later, Mr. Wright was supposed to attend a meeting of district sales managers, but the night before that, his son was injured and he had to take him -- had to take the next day off to take his son to the doctor. So he missed the meeting of district sales managers. The new general manager was furious and when he finally arrived to work, he was fired. So Mr. Wright then sued for disability discrimination and retaliation. And the court held in this case that there was not enough evidence of disability discrimination because under the Americans with Disabilities Act, ADD was not a disability unless Mr. Wright could show that his ADD substantially limited the major life activities of reading, speaking, concentrating, thinking, articulating and the court said he was able to do all those things prior to the arrival of the new general manager. So the ADD condition did not fit in this case under the definition of a disability under the Americans with Disabilities Act. However, the retaliation claim should have gone to the jury, for the jury to decide, because the underlying claim of discrimination doesn't have to be actionable, which it was not in this case. In this case, though, it was undisputed that Mr. Wright had asked for accommodations. You know, letting him set his own time for completing tasks, having the work assignments in writing and so forth. And he had asked for those accommodations and shortly thereafter he was fired. So the court said it was error for the lower court to dismiss those claims that once Mr. Wright had made that showing, CompUSA should have been required to offer evidence that it had a legitimate, nondiscriminatory business reason for firing him and then Mr. Wright would have had the burden of showing that it was just a pretext or an excuse and in fact they were retaliating all along. This case is interesting just because it illustrates clearly that proximity in time is really important in the factual analysis of these cases, and also you don't actually have to have had discrimination occur for retaliation to be a viable cause of action. Another case from 2004, Washington vs. The Illinois department of revenue where a secretary who worked for the state department of revenue, Chrissy Washington had worked there for 14 years and her hours were 7:00 a.m. to 3:00 p.m. The normal workday there was 9 to 5, but in 1984, Ms. Washington had been given approval to have this flexible time of 7 to 3 because she needed to get home by three o'clock or 3:30 every day to care for her son who had down syndrome. She worked there for 14 years without incident, but in 1999 something happened with her work assignments. Her work assignments began to change and she wasn't being given as much responsibility and other people were getting to do the more interesting work and she believed that this was on account of race discrimination. So she filed a race discrimination charge based on the change in work assignments. Shortly thereafter, her flextime work schedule was changed and she was required to take vacation or sick leave every day from 3 to 5 until her benefits were exhausted. Ultimately, she was reassigned to a new position where her hours were 9 to 5. And when she asked for an approval of flextime so she could go back to her 7 to 3 schedule and be allowed to care for her son again, or be able to care for her son, it was denied. And the court here held that the department knew that Ms. Washington had a real and legitimate need for the flextime schedule. It had approved the schedule once years before, but it only withdrew the approval and refused to reinstate the approval after she complained of race discrimination. And the court held that this shouldn't go to the jury and to decide whether or not she had suffered retaliation for having made the complaint of race discrimination. There are actually cases where undocumented workers in this country have been held to have a right to be free of retaliation for complaining about unfair or illegal wage payments. So the retaliation right is extremely broad and protect people who may not even be citizens of the country as long as they are working here, they are entitled to be paid appropriately and they are entitled to be free from retaliation for complaining about illegal practices. I want to talk for just another couple of minutes about a particular California animal which is tortious retaliatory discharge, and it relates to people who are fired or terminated in retaliation for exercising the protected activity we've been talking about. And it's a broad cause of action in California and it's dangerous or concerning for employers because tort damages which include -- can include punitive damages -- are available for this in California. It basically if somebody is terminated in violation of a statute or a regulation or on public policy grounds or for exercising legal rights, they could have a cause of action against their employer. And examples of exercising legal rights, in California employees have an absolute right to discuss their amount of compensation. You can't instruct an employee that they can't talk about how much they make. You can't complain about -- there is no smoking in the workplace. So if somebody complains that there is smoke in the workplace and then you fire them, that can be the basis for a retaliatory discharge claim. But it doesn't -- in California the protected activity is growing broader and broader all the time. There doesn't have to be a statute that gives the employee the right to bring a retaliation claim. It can be that the -- they complain to the employer is violating a public policy which is not embodied in a statute and that can be sufficient to be the basis of the claim. If there is one case that came down just last week, it was reported in the legal newspaper here on July 6th, it's called James vs Christianson Miller and about six other names in this law firm. It was decided by the California second district Court of Appeals. The case involved Robert Shapiro's law firm. I don't know how many of you remember him, but he was on the dream team, the defense team that prented represented O. J. Simpson in his murder trial. The complaining party here, Paulette James worked for Shapiro’s law firm actually as his secretary. She was there for less than a year and in late 2002 she testified that she discovered that Mr. Shapiro was engaging in what she considered to be improper billing practices. She testified that he was inflating hours that was spent on legal tasks and instructing her to white out amounts that had been billed by other law firms being passed on to the clients and enlarge the numbers and she began keeping a separate ledger reflecting the bills and payments relating to certain clients and she confronted Shapiro about what she considered to be improper practices and he became furious and she was fired. Now, the law firm argued that this -- and she was fired and she filed a lawsuit for retaliatory discharge. And the law firm argued that there could not be any retaliatory discharge because there was no statute or no law giving an employee a right to sue for retaliatory discharge under this circumstance. She was complaining about what she thought was unfair billing practices, but that's not the same thing about complaining about harassment or some other discrimination that's prohibited by law. But the Court of Appeals here held that even though there was no specific law authorizing a retaliation claim in these circumstances, there is a strong public policy against attorneys over billing their clients, and that this public policy was a sufficient basis to support the tortious retaliatory discharge claimed filed by Ms. James. So that case will now go back down to the trial court to see whether in fact she suffered actionable retaliation. So it's just an illustration of how the law of retaliation is expanding all the time and the bases for employees having a cause of action are shifting and expanding as well. I guess I'd like to close my presentation remarks by saying education is key on both sides, and communication is key on both sides in order to improve conditions in the workplace so that retaliation can be eliminated because it really is something that needs to be taken seriously by employers and employees need to be aware of their rights and how to properly exercise them to effect change in the workplace for everybody's benefit. That concludes my prepared remarks and I'd be happy to take questions. >> TAJAUNA: Okay. Well, actually, Ms. Regan, you have apparently done such a great job presenting on the topic that there are no questions. So unless you have any objections, we can go ahead and end the Web cast. >> COLLEEN: Okay, that's fine with me. >> TAJAUNA: Thank you very, very much. Your information has been extremely informative. I know I've learned a lot and I believe the listeners have as well. Also note that this Web cast will be archived on ILRU's website which you can find by visiting www.ilru.org. I would like to acknowledge the National Institute on Disability and Rehabilitation Research, NIDRR, who funds your host for today's program, the Disability Law Resource Project. I would also like to thank the in-house staff at ILRU who without their effort this Web cast would not be possible. They include Marj Gordon, Sharon Finney, Dawn Heinsohn, Vinh Nguyen, Maria del Bosque, as well as the technical expertise provided by Rob Dickehuth and our realtime captioner Marie Bryant. I encourage anyone with questions on the ADA to call the toll free number at 1-800-949-4232. Again, thank you for joining us and again Colleen, thank you so very much for your information and we hope all of you will join us again next Wednesday, July 26th at 2:00 p.m, central standard time to listen to the Web cast ADA complaints presented by Aaron McCullough. Thank you very much. See you next time. >> COLLEEN: Thank you.