EEOC-Initiated Litigation - 2022 Edition

46 | EEOC-Initiated Litigation: 2022 Edition © 2022 Seyfarth Shaw LLP employer retaliated against a former employee after she filed a charge of race discrimination with the EEOC. Reviewing the record, the court found ample evidence of direct evidence of unlawful retaliation, noting the presence of emails that “reflect a clear intent to terminate or at least take some adverse employment action against [charging party] in response to her protected activity.” 340 According to the court, “[t]he emails throughout Fall 2016 reflect a plan to wait for the opportunity to terminate or at least discipline [charging party] – specifically, the results of [charging party’s] attempts to complete the State licensing requirements. ” 341 In light of such evidence, “[n]o inferences or presumptions [of discrimination] are required.” 342 The emails in that case showed that the employer’s CEO had described the charging party’s claims as “specious,” “baseless,” and required “holding your nose” to handle, which was then was followed by a discussion about how to get rid of the charging party. 343 Not only did those emails provide direct evidence of retaliation, they also satisfied the causation element of a retaliation claim: “The emails, however, provide an undisputable causal connection between [charging party’s] protected activity and her suspension. In addition to communications criticizing her EEOC charge, which began within a month of its filing, emails were exchanged in early September – within two months of [charging party’s] protected activity – at the very least suggesting a plan to take adverse action against her.” 344 The employer attempted to justify its actions by pointing to the charging party’s “continued resistance to adhering to the Company's licensing requirements and the lack of integrity displayed by her misleading actions and statements related to the New York licensing exam.” 345 The court noted that the employer had not taken any action against other similarly situated employees who had not passed the required exams in a similar amount of time, and in fact, others had failed the licensing exams without reprisal. 346 The court also pointed to the emails that provided the direct evidence of retaliation as further evidence of pretext. Nevertheless, the court allowed the issue of pretext to be decided by the trier of fact: “While the court finds the evidence of retaliation to be strong, it nonetheless sees a genuine issue of material fact as to whether the reason offered by [employer] for [charging party’s] discipline is pretextual. Accordingly, this issue must be resolved by the finder of fact.” 347 Causation is often a stumbling block for the EEOC as it tries to prove retaliation claims. For example, in EEOC v. Jackson National Life Insurance Co. , 348 the EEOC alleged a range of sexual harassment perpetrated against the charging party by her co-workers, and also that she had been retaliated against because she complained about the harassment. Among other things, the EEOC alleged that the charging party suffered adverse actions when she was put on a performance improvement plan, was not promoted, had her sales territories taken away, and was subjected to increased monitoring and background checks . 349 The court found that the EEOC had failed to establish a causal connection between the protected conduct and the alleged adverse actions. With respect to the performance improvement plan, which had been imposed after the charging party ’ s supervisor had given her a verbal warning about her work performance and conduct at work, the court found that the EEOC had failed to show that those reasons were pretextual. 350 With respect to the EEOC ’ s claims regarding promotions and sales territories, the court also concluded that the EEOC failed to show that the employer ’ s reasons for making those decisions were pretextual. 351 Finally, the EEOC had alleged that the charging party ’ s manager had engaged in a 340 Id . at *7. 341 Id . 342 Id . 343 Id . 344 Id . at *8. 345 Id . 346 Id . at *9. 347 Id. 348 EEOC v. Jackson National Life Insurance Co. , No. 16-CV-02472, 2021 WL 927638 (D. Colo. Mar. 11, 2021). 349 Id. at *10. 350 Id. at *11. 351 Id.