by Art Gutman Ph.D., Professor, Florida Institute of Psychology

Generally, there are three prongs to a retaliation claim: (1) plaintiffs must establish engagement in protected activity (either opposing an employer practice and/or filing a formal claim of discrimination); (2) they must establish a materially adverse action; (3) they must establish a casual connection between engaging in the protected activity and the materially adverse action. In its 2006 landmark ruling in Burlington Northern Santa Fe Railway Company (BNSF) v. White [548 U.S. 53], the Supreme Court endorsed a relatively light standard for proving the materially adverse action (Prong 2): that any actions that would dissuade a reasonable person from engaging in lawfully protected activities is materially adverse.

Eric Dunleavy and I have discussed this case in several articles (see Gutman, 2006; Dunleavy, 2007; and Gutman, 2007). One of the issues we have wondered about is what happens in sexual harassment cases where there is (a) no harassment, but retaliation for the complaint versus (b) harassment, but no retaliation for the complaint. Two fresh cases deal with these issues.

On March 10, 2010 the 11th Circuit agreed to review a same-sex (male on male) en banc. The case is Corbett v. Home Depot. The case involved complaints by two male store managers that a gay male regional HR manager engaged in flirtatious actions (including touching). The male store managers complained and were terminated. The district court judge granted summary judgment for Home Depot on both the sexual harassment and retaliation claims. A three-judge panel of the 11th Circuit supported the sexual harassment ruling, but overturned on the retaliation claim (589 F.3d 1136).

In the other case [Peoples v. Marjack Co., D. Md., No. 8:08-cv-178, 3/5/10], the U.S. District Court for the District of Maryland favored summary judgment for the defendant (Marjack) on retaliation, but not sexual harassment. As in the prior case, the plaintiff (Peoples) was terminated. On the harassment claim, Marjack had a policy to prevent and quickly correct sexual harassment violations. But in this instance, Peoples complained about harassment to her immediate supervisor and the supervisor failed to forward the complaint to the HR department. That left a triable issue as to whether Marjack acted reasonably to “prevent” harassment, since the alleged harasser was a repeat offender about whom Marjack had prior notice. Peoples claimed retaliation on grounds that she was terminated 10 months later for falsifying a time card. However, the causal connection was weak because Marjack was consistent on its policy of firing for time card falsification in three other cases in which there were no initial complaints of discriminatory behaviors.

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