The Retaliation Claim – It’s All in a Day’s Work
Posted by chapteradmin on Jul. 7, 2021 / Legal Updates / Subscribe 0
By: Claudia D. Orr, Plunkett Cooney
You know what they say, write for your audience. I think I nailed it!
Today you will hear about a human resources employee turned plaintiff. Yep, I know I just got your full attention. Jackson v. Genesee County Road Commission is just one more opinion from the U.S. Court of Appeals for the Sixth Circuit that turns my hair gray.
Makini Jackson was hired by the Genesee County Road Commission (Road Commission) on March 31, 2016 as its new director of human resources. The Chief Administrative Officer (“CAO”) hired her based on the recommendation of a panel of Road Commission employees who interviewed her. He became her direct supervisor.
Prior to Jackson becoming the HR director, the CAO handled those duties (in addition to his own) on an interim basis. When Jackson was hired, there were several outstanding internal complaints of discrimination. Some had been investigated but not resolved to the satisfaction of the employees who complained.
Some complaints had been brought by three African American employees against John Bennett, the director of equipment and facilities. Jackson investigated the employees’ complaints and found that he had discriminated against Branch, one of the three employees, because of his race. She also found his behavior to be erratic and recommended that Bennett be placed on an administrative leave and sent for a psychological evaluation. The CAO supported the action.
The evaluation cleared Bennett to return to work. An outside attorney wrote to Bennett informing him he could return but requiring him to be respectful of his coworkers’ authority and “polite, pleasant and professional.” Bennett responded with a handwritten note indicating he had always treated coworkers and supervisor with respect and dignity.
At that point, the attorney, the CAO and Jackson began discussing whether Bennett should be allowed back at all. Jackson later testified that she did not want Bennett to return, but the CAO and the attorney were initially not in agreement with her. The employees who had complained about Bennett, expressed their disapproval of his return and requested formal EEOC complaints.
Eventually, Jackson was given approval to negotiate a severance package with Bennett which was approved by the County Board of Commissioners and finalized on Aug. 16, 2016. The CAO criticized Jackson for exceeding the severance cap that he set before her negotiations began, but he praised her negotiating skills and for reaching an agreement.
How is that for excitement during just the first five months of Jackson’s employment? There was more to follow. Five weeks later, Joyce McClane (who reported to Jackson and was one of the employees who had complained about Bennett) told Jackson she had been complaining for two years about the harassment, discrimination and retaliation directed at her by the Road Commission’s finance director, but nothing had been done to correct the situation.
McClane’s complaint was that the finance director sent her emails that were intrusive and inappropriate. Jackson attempted to intervene by requiring the finance director to send all communications to McClane through her.
Also, because McClane reported to her, Jackson asked the Genesee County human resources director to conduct an investigation. When the finance director continued to directly communicate with McClane, Jackson scheduled a meeting with the CAO, two county commissioners and the finance director. McClane resigned shortly thereafter.
Jackson, who also served as the Equal Employment Opportunity (EEO) Officer, also had concerns about the EEO plans that were submitted by vendors to the Road Commission. In addition, she feared that some employees may have been “colluding” with vendors prior to their plans being approved and documents and bids being submitted.
Jackson also found that there were some EEO plans that were never completed and others that had expired. Jackson implemented a new process requiring all vendor communications and documents to be directed to her, and she informed vendors that, if they didn’t comply, she would ask the commissioners to cancel their contracts or declare them ineligible for future contracts until they complied. Jackson implemented these new policies in July 2016, just months after she was hired.
Well, you may be stunned to hear that complaints began to roll in about Jackson from employees (including every department director), vendors, the union, and board members about her demanding communication style and abrasiveness. Some vendors indicated that if Jackson remained, they would no longer conduct business with the Road Commission.
Even the outside attorney complained because Jackson was demanding that all of his communications to Road Commission employees pass through her. The attorney complained that he did not “work for her,” and she was interfering with his ability to reach employees and prepare for cases and arbitrations. He also complained that Jackson rewrote Bennett’s severance package without his permission.
Jackson did have her supporters as well, including the CAO, who eventually made the decision to fire Jackson in October 2016. The attorney testified that the CAO made the decision because “nobody could stand her, she couldn’t work with anybody, [and] he had a riot on his hands with a lot of suppliers. … [Jackson] had not ‘settle[d] down’ like [the CAO] had hoped, and [he] ‘was fed up with her and he was letting her go.”
On Oct. 17, 2016, the CAO told Jackson she was being fired because she was an at-will employee. She filed a charge with the Equal Employment Opportunity Commission on May 17, 2017.
Can I just digress for a moment? Please rid yourself of any notion of telling an employee that you are firing them because of their at-will employment. Unless it’s a union setting, “just cause” employment is virtually non-existent. It has been for over 40 years. Telling an employee they are being fired at-will is basically saying “just because we can” and that will cause the employee to conjure up their own idea of “why” it occurred. Just a little secret between you and me, that reason will always be an unlawful reason. Telling an employee they are fired because they are at-will makes it very difficult to defend claims.
Tell the employee the truth. “You are being fired because of your ongoing performance issues” or “because of your recent misconduct,” etc. Don’t be more specific than you need to, and you should not need to be very specific because the employee should be able to see it coming (for example, they have received poor reviews or a performance improvement plan, or there is a work rule prohibiting their misconduct or prior discipline, etc.).
Now back to our story. In her EEOC charge Jackson claimed she was fired for engaging in protected activity (investigating and addressing employees’ discrimination complaints, reporting employees who were violating the EEO policies in hiring contractors, etc.). The EEOC issued her a right to sue letter, and Jackson filed her complaint in the U.S. District Court for the Eastern District of Michigan, alleging retaliation under Title VII and the Elliott-Larsen Civil Rights Act and wrongful termination in violation of Michigan’s public policy. The court granted the Road Commission’s motion to dismiss, in part, because it found Jackson’s conduct was not “protected” since it did not go beyond her regular job duties as the HR director. The appeal followed.
This case got a lot of attention from the U.S. Department of Justice which filed an amicus curiae brief (not a party but weighing in and offering the court advice). Let me just jump to the punch line because that is why you have hung in there in this much longer article than usual.
The civil rights statutes do not require an employee’s conduct in opposing discrimination to be outside of their regular job duties to be protected activity. To be successful, the statutes only required Jackson to show she opposed unlawful practices in a reasonable manner with a good faith and reasonable belief that the practices violated the civil rights law.
Jackson’s investigation into Branch’s complaints against Bennett and her activity as the EEO officer as she investigated and corrected the issues with the expired/missing EEO plans (to ensure there was no discrimination in hiring by the Road Commission’s vendors) were protected as opposition activity under the civil rights laws.
The appellate court also reversed the dismissal of the discharge in violation of public policy because there remained genuine issues of material fact concerning whether Jackson was fired for her abrasive communications or for enforcing the EEO plan requirements and investigating claims of discrimination.
Well, there you have it. I don’t know of any seasoned HR professional who has not engaged in “protected activity” under civil rights laws in the course of their employment. The only question is whether the HR professional can show his/her termination was caused by that work.
This article was written by Claudia D. Orr, who is Secretary of the Board of Detroit SHRM, a member of the Legal Affairs Committee, and an experienced labor/employment attorney at the Detroit office of Plunkett Cooney (a full-service law firm) and an arbitrator with the American Arbitration Association. She can be reached at [email protected] or at (313)983-4863. For further information go to: http://www.plunkettcooney.com/people-105.html.
Detroit SHRM encourages members to share these articles with others, inside and outside their organization, if its name and logo, and the author’s information, is included in the re-post of the article. July 2021.
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