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We’re seeing one thing more frequently than ever: Employees prevail against employers not so much on “primary” claims of employment discrimination (the traditional race, sex, national origin, religion, age, disability, etc.) but on “secondary” claims of retaliation based upon some earlier charge of discrimination by the employees. Here’s the dangerous thing about retaliation claims: They’re absolutely, fundamentally believable. If you smack me in the face, you’re justified in thinking I’ll smack you back. If you are on a jury and you hear that Elmer Employee smacked his boss, you already are pre-qualified by your life experience (aka common sense) to expect the boss to return in kind. An eye for an eye; tit for tat; in a word, retaliation. A lust for revenge may be a trait that we all believe is basic human nature — if not in ourselves, at least in others. Now, add to this mix the current fact that some smacks in the face by employees not only are lawful but also are protected activity and you have a recipe for a stealth suit. That’s one that sneaks up on an employer by appearing to be a trivial fuss until a jury smacks the employer back, to the tune of hundreds of thousands of dollars. How can this happen? We have three answers. Employers are exquisitely attuned to protected statuses created by statute — race, sex, etc. — that focus on a person’s inherent traits; and virtually all employers have well-meaning policies designed to protect persons from discrimination based on those traits. The retaliation claims arise not based on what a person is, but on what a person has recently done. And sometimes that unique and temporary protected status does not show up on the employer’s radar screen. As noted above, juries are quick to buy into arguments of retaliation, based on their own experience in trading face smacks as well as on an innate distrust of employers. Sometimes — not always, but sometimes — employers help juries reach a conclusion of retaliation because it is true. Sometimes, things can get personal, and personal feelings can influence — or appear to influence — business decisions. After all, it’s one thing for a manager to be accused of, say, breaching a contract; but it’s infinitely more hurtful for the manager to be accused of intentional discrimination. Three recent cases make this point. We have picked these cases not because they are novel; they are not. They are routine. They demonstrate again — within the past few weeks — that the new favorite cause of action of plaintiffs’ lawyers is retaliation. CASE ONE The get-your-attention fact: In Mota v. University of Texas Houston Health Science Center, et al. (2001), a jury decided against the employer, and wanted to award more than $450,000 in damages; the trial court entered judgment on most of that and added another $388,000 in attorney fees; the 5th U.S. Circuit Court of Appeals affirmed virtually all that. The facts, according to the opinion: Dr. Louis Mota, a periodontist, sued his employer, the University of Texas Houston Health Science Center, because his supervisor (“one of the 10 most famous academic periodontists in the world,” the opinion noted) repeatedly and unsuccessfully sexually propositioned him. Then Mota was allegedly retaliated against after he refused the propositions and complained about them. The retaliation was a bit subtle. The court wrote that the university assigned Mota fewer graduate classes, denied him a small ($2,500) stipend, would not let him teach a course in Spain, and did not grant him the type or length of leave of absence he requested. But the punch line is that Mota, having complained of sexual harassment, had protected status by virtue of that complaint alone — regardless of whether there was any validity to it. The jury was quick to believe that this protected status motivated the university to “retaliate” in the small ways that ultimately added up to an affirmed judgment of $702,791. Beware: There always is an understandable reluctance on the part of employers to take action against key players — for example, a top officer, a sales representative with large accounts or, in this case, “one of the 10 most famous academic periodontists in the world.” Lesson: Even key players can cause big liability. (In case you’re wondering what happened to the alleged harasser, he settled before trial for $290,000.) CASE TWO The get-your-attention fact: In Mato v. Texas A&M University System, et al. (2001), the trial court entered judgment on the jury’s verdict of $466,000 and then added attorney’ fees. The 5th U.S. Circuit Court of Appeals reversed. The facts, according to the opinion: Christine Mato was curator of ocean floor core samples for Texas A&M. She also championed the rights of her fellow employees by helping them file sexual harassment charges, between 1990 and 1995. When she was reorganized out of a job in 1996, she claimed retaliation under the “opposition” clause — i.e., she claimed the real motivation in the employer’s action was because she had assisted other women in suing the employer for discrimination. The jury agreed. The 5th Circuit could have gone either way. It reversed the judgment for two reasons, neither of which can give great comfort to employers confronted with similar employees in the future. First, the year that had elapsed between Mato’s most recent assistance to a fellow employee and her current termination, in the words of the court, “does not support the inference of retaliation.” Second, the court rejected Mato’s disagreement with the reorganization that caused her to lose her job because “anti-discrimination laws are not vehicles for judicial second-guessing of business decisions.” Beware: An employee who has assisted others in filing discrimination claims within the past year (or indeed, has done so for himself or herself) may have an argument that any adverse action is per se motivated by his or her earlier claim. And, even though Texas A&M ultimately won, it took a trial and an appeal to achieve that result. Lesson: Treat employees who have recently complained about discrimination to themselves or to others with care. Any adverse job action should be objectively justified. CASE THREE The get-your-attention fact: In City of University Park, Texas v. Van Doren (2001), the jury wanted to award more than $760,000 in damages against the city of University Park. The trial court entered judgment for $250,000, which is the maximum allowed under the Texas Tort Claims Act against cities. The Dallas Court of Appeals affirmed. The case facts, according to the opinion: Assistant police chief Thomas Van Doren filed a workers’ compensation claim in 1993, based on an earlier job injury. He had surgery and a difficult recovery. He was reorganized out of his job in 1994. The jury found that action to be retaliation for his having filed a workers’ comp claim. In affirming, the Court of Appeals noted that evidence supporting a verdict of workers’ comp retaliation can include a “negative attitude” toward the employee’s injuries, failure to follow policies, disparate treatment and evidence that the employer’s stated reason was false. Van Doren had evidence on each of these points, and the city lost. Beware: Retaliation based on prior workers’ compensation claimant status is increasingly popular. The fact that negative-attitude evidence is relevant means that an employer being upset over a safety violation could be construed to be a negative attitude toward the injury. Because proof of pretext is relevant, evidence of the employee’s disagreement with the business decision likely will be admitted. Lesson: Recent workers’ compensation claimants have equally as powerful protected status as other traditional protected groups. Retaliation is a state of mind. It is a subjective intent on the part of the decision-maker. Motivation is almost never subject to direct proof, which is why courts allow the indirect proof of negative attitudes, disparate treatment, failure to follow established policies and — notwithstanding the 5th Circuit’s language in Mato — proof of pretext or disagreement with the employer’s stated reasons. The jury sits not merely as a fact-finder to determine what happened but more as a mind-reader to determine why it happened. The employer’s best defense is to plan ahead, make decisions where possible based on objective facts and to recognize that high-risk employees also include those who recently have complained about discrimination or claimed workers’ compensation. The best defense is the same as ever — fairness and consistency.

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