Alaska Employment Law

Jump to Comments

Introduction

The Ninth Circuit issued a new opinion on February 12th,  which it reversed judgment entered on a jury verdict for the plaintiff in a retaliatory discharge case, and held that the employer was entitled to judgment as a matter of law because the retaliatory motive was ascribed to a lower-level supervisor who never had any part to play in the actual termination decision. The case is Lakeside-Scott v. Multnomah County, ___ F.3d ___, Slip Op. 1721 (9th Cir. Feb. 12, 2009). This summary briefly reviews the opinion and its significance.

The Case

Lea Lakeside-Scott worked as an information systems specialist with the Department of Community Justice in Multnomah County, Oregon. She filed a formal complaint with Oregon’s Bureau of Labor and Industries (”BOLI”) alleging that one of her supervisors, Jann Brown, gave preferential treatment to gays and lesbians when hiring new employees. Brown resented the complaint and felt that it was a personal attack against her.

Shortly after Lakeside-Scott filed her complaint, Brown’s supervisor Joanne Fuller, instructed Brown to search the email of another employee as part of an investigation into allegations that employees had been sending racially discriminatory emails at work. At this time, no allegations had been made concerning Lakeside-Scott. Complying with Fuller’s order, Brown instructed another employee to carry out the search. Brown did not conduct the search because she did not have the technological know-how to carry it out. The search uncovered emails sent by Lakeside-Scott that contained discriminatory comments. Brown brought this information to Fuller’s attention. Fuller met with Brown and a lawyer for the county. Fuller decided to place Lakeside-Scott on administrative leave. Fuller then ordered that a more thorough investigation into Lakeside-Scott’s activities be conducted. Brown did not order that this second investigation be conducted, and she had nothing to do with its scope or findings. Meanwhile, Fuller instructed Brown to advise Lakeside-Scott that she had been placed on administrative leave. Brown complied.

The second investigation ultimately developed evidence that Lakeside-Scott had misused County property, conducted personal business on work time, engaged in prohibited workplace harassment, and committed other acts that violated County policies. Based on the results of the second investigation, Fuller decided to terminate Lakeside-Scott. Brown had no part to play in this decision.

Lakeside-Scott filed suit alleging that her termination was a retaliatory discharge because of the BOLI complaint that she had filed. She relied on 42 USC § 1983 and Oregon’s Whistleblower statute.  The case proceeded to trial. The jury agreed with Lakeside-Scott and awarded her $650,000 in compensatory and punitive damages against Brown. Brown moved for judgment as a matter of law (JMOL), arguing that there was no link between her and the decision to fire Lakeside-Scott. The district court denied Brown’s motion. She appealed.

The Ninth Circuit’s opinion

The court of appeals reversed. The court held that, as a matter of law, there was no basis to link up the decision to terminate Lakeside-Scott with any retaliatory motive that Brown may have possessed. Brown did not conduct the initial investigation into the emails. Brown did not make any decision to conduct the second investigation. Brown did not make any decision to place Lakeside-Scott on administrative leave. Brown did not make the decision to terminate Lakeside-Scott. Instead, all relevant decisions had been made by Fuller. Consequently, the court concluded that even if one assumed that Brown held an impermissible retaliatory motive, there was no evidence to link up this motive with the actual termination decision. There was simply insufficient evidence to show that Brown’s alleged retaliatory motive was a substantial or motivating factor behind the ultimate decision to fire Lakeside-Scott.

Significance

This case presents a different perspective on “cat’s paw” cases. Most retaliatory motive cases involving a lower-level supervisor concern whether or not the impermissible motive of the lower-level supervisor can be imputed to the final decisionmaker. In Poland v. Chertoff, 494 F.3d 1174 (9th Cir. 2007), the Ninth Circuit concluded that the answer was “yes”—such imputation is permissible—so long as the plaintiff can show that the lower-level supervisor influenced or was involved in the decision or in the decision making process. Here, the liability question focused on the lower-level supervisor, herself, but the same inquiry was involved. There was, in the court’s view, simply no evidence to show that Brown had any part to play in the termination decision. It therefore followed that Lakeside-Scott’s claim collapsed for failure to link up the retaliatory motive with the termination decision.

Recommendations

To some extent, Brown escaped liability through a fortuitous chain of circumstances. For example, she would have actually conducted the initial search but she lacked the technological capabilities to do so. Had Brown conducted the initial search, an argument would have been raised as to the product of that search.

On balance, three points seem significant:

1)  Employers do not have to restructure the workforce in response to formal complaints. However, it would never be a bad idea for employers to consider transferring employees or supervisors where appropriate or possible so long as no one suffers any adverse employment action as a result.

2)  Employers should recognize that all forms of retaliation claims are on the rise.

3)  Employers should explore options to insulate themselves from potential retaliatory discharge cases. For example, if a complaint has been filed against a supervisor and is pending, it would be a good idea to screen off that supervisor from any disciplinary investigations or decisions concerning the employee who filed the complaint. It may not always be possible to accomplish this. However, employers should work with their counsel to identify options that may help to minimize or eliminate retaliatory discipline claims from being filed.