THIRD PARTY RETALIATION CLAIM ALLOWED TO PROCEED

The case is Dinkens v. Creative Business Solutions (CBS) decided on 9/4/13 by Judge Richard D. Rogers of the District Court of Kansas [2013 U.S. Dist. LEXIS 125898].

The facts in this case are interesting. Dinkens was offered a job by the United Way of Greater Topeka and it was subsequently rescinded. Previously, Dinkens worked for Florence Crittenton Services of Topeka, leaving in December 2010. She subsequently applied for the United Way job and later sued Florence Crittenton for race and disability discrimination. Dinkens did not list the job at Florence Crittenton in her resume due to “limited space on her resume.” However, CBS had previously consulted with Florence Crittenton, and Dinkens alleges that the United Way President Krehbiel was informed by consultant at CBS President Dietrick that there were “red flags” with Dinkens’ application, that she was not a “good fit”, and that she failed to list her job at Florence Crittenton. It was alleged further that Krehbiel called Florence Crittenton, had another consultation with Dietrick, and then rescinded the offer.

Filing under Section 1981 of the 13th Amendment, Dinkens claimed that CBS’s conduct “constituted intentional and wrongful interference with an expected employment relationship.” CBS moved for dismissal, arguing that the withdrawal of the job offer was not their work, but the work of the United Way President Krehbiel. In rejecting the motion for dismissal, Judge Rogers ruled:

The court finds that the allegations in the complaint provide a plausible basis from which to find a causal connection between plaintiff's injury and defendants' conduct, notwithstanding the role played by Ms. Krehbiel.

It should be noted that Dinkens sued both CBS the company and Dietrick in her personal capacity, something permitted in Section 1981 that is not permitted in Title VII. Seems to me that Dinkens could have also sued Florence Crittenton based on the Supreme Court’s ruling in Robinson v. Shell Oil (1997) [117 S.Ct. 843], where Robinson had sued Shell Oil and Shell Oil wrote a negative reference letters.

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

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