To successfully establish a retaliation case, the employee has to show that the negative employment action he or she suffered was “adverse” and that it occurred as a result of the employee complaining about the discrimination.

Technically, courts have ruled that an action is “adverse” when a reasonable employee would be hesitant or dissuaded from filing a discrimination complaint fearing that the same negative consequences would occur to them.

In practice, however, the actual meaning of “adverse” remains unclear. In fact, what action a court deems sufficiently “adverse” may surprise you. For example, in 2017, in Bien-Aime v. Equity Residential, a federal district court in New York decided that not saying good morning to an employee and speaking without a “warm welcome in his voice” were considered adverse actions.

Today’s employment law blog discusses a recent retaliation case, Duplan v. City of New York, decided by New York’s federal appellate court on April 30, 2018. Although this case did not clarify the meaning of “adverse,” it did change other parts of the legal landscape for retaliation cases in New York. Below are the facts of the case.

Duplan, a gay black male from Haiti, worked as the Director of Operations in the City’s HIV/AIDS Prevention and Control Bureau. Alleging that he was subjected to employment discrimination on the basis of his race, national origin, and sexual orientation, Duplan filed a discrimination lawsuit under Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 USC Section 1981, and further alleged violations of his Constitutional rights via 42 USC Section 1983.

In the lawsuit, Duplan also alleged that his supervisors retaliated against him after he filed discrimination charges, in 2011 and 2014, with the Equal Employment Opportunity Commission (“EEOC”) and the New York State Division of Human Rights (“NYSDHR”). Specifically, some of his allegations were that his supervisors took away some of his job responsibilities, ostracized him, and repetitively denied him from promotions that he was otherwise qualified to receive.

The district court dismissed Duplan’s retaliation case because the court did not believe that Duplan proved an essential element of a retaliation case – causation. The causation element of a retaliation case requires a plaintiff to prove that the employer took action against the employee because of the employee’s complaint of discrimination. Duplan appealed his case to New York’s federal circuit court.

On appeal, the Second Circuit Court of Appeals agreed with most of the lower court’s decision, except for the retaliation portion. On appeal, the Second Circuit determined that sufficient evidence in the record supported the causation element. The court held that collectively, Duplan’s supervisors had “persistently discouraged him” and were slowly but surely trying to get rid of him which the court labeled as a “drumbeat of retaliatory animus.” These actions showed that his supervisors maintained a retaliatory animus against Duplan.

Additionally, the court also decided this was the chance to clarify two other parts of the law concerning retaliation.

First, the Second Circuit joined with several of its sister courts and held that discrimination claims under Section 1981 were off limits to government employees. This effectively leaves government employees with the option of bringing claims under only Title VII or Section 1983.

Next, the court discussed Title VII’s exhaustion requirements. Exhausting a claim is a pre-requisite to filing a discrimination claim under Title VII in court. Employees are generally required to first file a charge of discrimination with an administrative agency such as the EEOC within specific time limits, generally 300 days from the time of the discrimination or retaliation.

Prior to the Duplan decision, reasonably related claims were considered automatic exceptions to the exhaustion requirement. The Duplan decision, however, changed this after holding that reasonably related claims were an exception only if they occurred during the time that the EEOC was investigating the case or if the suit had been timely filed.

This new rule created an issue for Duplan’s retaliation claims that allegedly occurred prior to December 27, 2013, because he had not followed the timeliness requirements. For example, in 2011, he ignored the 90-day time limit to file a lawsuit which employees must comply with after receiving a right sue letter from the EEOC.

After the decision in Duplan, it is important that employees file their claims correctly and adhere to the time limitations. Otherwise, a court may later dismiss a claim.

The Long Island employment lawyers at Famighetti & Weinick PLLC can help you decide what agency it may be better to file a discrimination or retaliation case with, help you understand important time and filing requirements, and other important considerations that may be the key to a successful lawsuit.

Contact a Long Island employment lawyer at Famighetti & Weinick at 631-352-0050 for a free consultation. Our website is https://www.linycemploymentlaw.com/.

Today’s employment law blog was written by law clerk Thalia Olaya.

The following facts are taken from NLRB v. Pier Sixty, LLC, a case decided by the Second Circuit Court of Appeals on April 21, 2017.

Hernan Perez was a server for Pier Sixty, a catering company. In 2011, Pier Sixty’s employees sought union representation. The organizing campaign was “tense,” with management threatening employees that they could be fired for union activities. Nonetheless, the employees unionized via a vote on October 27, 2011.

Just before the election, a Pier Sixty supervisor directed Perez and two other workers to stop chatting and to move. Perez was upset by the supervisor’s attitude. Shortly after this incident, Perez took an unauthorized break from working and posted a message on Facebook about “Bob,” the supervisor:

Bob is such a NASTY MOTHER F***ER don’t know how to talk to people!!!!!! F*** his mother and his entire f***ing family!!!!! What a LOSER!!!! Vote YES for the UNION!!!!!!!

The post was visible to Perez’s Facebook friends and ten co-workers. It was also visible publicly. Pier Sixty management learned about the post and then Perez removed the post on October 28, 2011. On November 9, 2011, Pier Sixty fired Perez, who filed a charged with the NLRB against Pier Sixty alleging that his post constituted protected concerted activity and that his termination was retaliation for that protected conduct.

In April 2013, an NLRB administrative law judge found that Pier Sixty had indeed terminated Perez in retaliation protected activity. The decision was affirmed by a panel of the NLRB board. In other words, the National Labor Relations Board determined that Perez was lawfully allowed to make his Facebook post about his boss and that the company could not legally terminate Perez because of his post. How could that be?

The National Labor Relations Act (NLRA), is the federal law which regulates unions. Section 7 of the Act provides employees with the right to “engage in . . . concerted activities for the purpose of collective bargaining or other mutual aid or protection.” Section 8 of the act prohibits employers from terminating employees who engage in protected activity described by Section 7. Employers, however, may terminate employees who may have engaged in protected activity, but did so in an abusive manner.

At issue in Perez’s case was whether the obscenities he used in his Facebook post were abusive such that he lost the protection of the NLRA. The Court of Appeals reviewed the history of the development of the legal tests used to determine whether obscenities are protected before noting that the NLRB has now adopted a nine factor totality of the circumstances test to use for social media cases, such Perez’s case.

The Court of Appeals expressed concern about the fairness of the test, but applied it anyway, because Pier Sixty did not challenge the validity of it. Instead, the Court looked at whether the Facebook comments were so egregious that Perez should not be protected by the NLRA.

The Court was troubled by Perez’s “vulgar attacks on [the boss] and his family,” but noted that the post included “workplace concerns” including management’s treatment of employees and the impending election. The Court further noted that management had “demonstrated hostility” towards workers and so Perez’s post was “part of a tense debate” about mistreatment.

The Court also found it important that Pier Sixty had tolerated profanity in the workplace before and had previously terminated employees for using obscenities. Notably, the Court also determined that the location the comments — online — was important because online forums, such as Facebook, are a “key medium” of communication.

In reviewing all the factors, the Court held that the NLRB did not improperly find that Perez’s conduct was egregious enough to lose NLRA protections. In other words, as inflammatory as Perez’s comments were, they were nonetheless protected as comments concerning workplace conditions. The Court noted, however, — and it is important to note here — that the facts in the Perez case were at the “outer-bounds” of protected activity.

If you have questions about the NLRA, NLRB, concerted activity, or employment law questions, contact Famighetti & Weinick PLLC, employment lawyers on Long Island. We can be reached at 631-352-0050 or online at https://www.linycemploymentlaw.com.