Can supervisor comments create a retaliation lawsuit in Florida?
A white woman over 40 years old worked as an executive assistant, until she was terminated during her 90-day probationary period. She sued her employer, asserting, among other things, a Title VII retaliation claim.
The white employee’s immediate supervisor was a black woman and about a week after the white employee began working, her black supervisor made a number of race- and age-based comments to her. For example, the black supervisor told the white employee that she needed a “suntan” to work in the executive suite, that she was “too old” to fit in at that company, and that she was “over the hill.” The black supervisor, referring to the white employee, also told another employee that “this little white woman is giving me drama over here,” and that the company “did not need another older executive assistant around here.”
The white employee verbally reported the discriminatory comments to the executives she supported, as well as to others, but not to anyone in human resources. The executives told her to avoid the black supervisor, or to stop reporting such conduct because her supervisor was a black female and the company did not want to get sued by the black supervisor.
The black supervisor called the white employee into a meeting in a conference room and berated her for about 45 minutes regarding her complaints to the executives concerning the discriminatory remarks. The black supervisor was angry and told the white employee that she had “cut her own throat” by making the complaints. The black supervisor also instructed the white employee not to have any contact with the executives she supported unless it was directly related to work on a specific task. The black supervisor also told the white employee that she was “f***ed,” that she would be blackballed, that her days working for the company were numbered, and that she “better watch it” because the black supervisor and her boyfriend knew where she lived. The black supervisor ended the meeting by pounding her fists on a table, leaning towards the white employee, and saying: “I’m so pissed off at you… How dare you make complaints about me.”
The white employee told some of the executives about the black supervisor’s behavior at this meeting, but they again refused to consider her complaints.
About two weeks later, the black supervisor told the white employee that she was training another person “to take your job. You better watch it, white girl.” The white employee again complained to an executive that the black supervisor was making racist remarks, but once again the complaint fell on deaf ears. Another employee overheard the human resources director, tell the black supervisor that she needed to find a way to make the white employee “disappear.”
The black supervisor told the white employee that she would be resigning. A human resources executive, who was listening to the conversation, when the black supervisor told the white employee that she needed to “watch herself.” The white employee reported these comments but was generally told to ignore the black supervisor because she was leaving the company.
The black supervisor was replaced by a white woman over 50 years old, and she began to ignore the white employee. The employer terminated the white employee’s employment, according to the company, due to “lack of confidence, lack of trust, and lack of teamwork.” But the white employee claimed that her new white supervisor told her that she was being discharged for “complain[ing] and complain[ing]” to the executives, that they were tired of her “complaining,” and that she did not “fit in with” the company.
The director of HR told the white employee, “I need you to understand that today is for Tammi” (the black supervisor) as she was escorting her out of the building on the day of her termination. The white employee understood that comment to mean that the company was retaliating against her by firing her because the black employee had been discharged.
The District Court granted the employer’s Motion for Summary Judgement against the employee, but she appealed and the 11th Circuit Court of Appeals (controlling in Florida) reversed the lower court and remanded the case (allowed the lawsuit to continue). Monaghan v. Worldpay US, Inc., 955 F.3d 855 (11th Cir. 2020).
The Court of Appeals explained that mistreatment based on retaliation for protected conduct—for example, making or supporting a charge of discrimination—is actionable whether or not the mistreatment rises to the level of a tangible employment action, but only if the mistreatment “well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” The Appellate Court explained that this retaliation standard protects employees more broadly—and is more easily satisfied—than the standard applicable to claims of discrimination.
The Court of Appeals explained that in this case, the statements from the black supervisor - which threatened both termination and possible physical harm - "well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.”
In addition, the company fired the white employee. The Court of Appeals explained that termination easily satisfies the “well might have dissuaded” standard, and a reasonable jury could find that the termination was retaliatory. First, when she was terminated, her new supervisor told her that she was being fired for “complain[ing] and complain[ing].” As noted earlier, a jury could draw the inference that the reference to the employee’s “complain[ing]” was to the complaints about the black supervisor. Second, the HR Director told the white employee, “I need you to understand this is for Tammi” when she escorted her out of the building. The Court of Appeals held that this statement, by a company executive, is additional evidence supporting the inference that the termination was retaliation for the white employee’s complaints about her supervisor.
The above "facts" are taken from the court's order. Although it is possible that the employer may be able to convince a jury that they are not accurate, the court relied on the above facts in order to make its ruling.
Florida business owners and HR professionals should learn from this recent court ruling that statements made by supervisors and HR leaders can bind the company. In this case, verbal statements by these type of company officials were used against the company to allow the employee’s retaliation claim to continue. This is another example of where Florida employers can learn from another company’s errors and train your supervisors to not make such comments. There should be no question that the comments made by the supervisors killed the defense in this case.
If you own a Florida business and you have questions about discrimination or retaliation, you may email the Law Office of David Miklas, P.A. for a consultation or you can call David Miklas at 1-772-465-5111 to discuss sexual discrimination or retaliation issues in Florida.
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