On August 7, 2018, a worker sent an email. The email stated, “I fear retaliation” and “my colleagues and I have been the victims of continuous harassment, both sexual and emotional.”
On August 9, 2018, just two days later, the company fired her.
How do you think that turned out?
If you answered, “Eric, I’m thinking summary judgment for the employer on the plaintiff’s retaliation claim and case dismissed,” well, you’d be right!
Bet you didn’t see that plot twist coming. So, I’ll offer some added context.
This email arose when the plaintiff heard a “rumor” that a particular individual might be selected as her new supervisor. Supposedly, she had many professional and personal problems with this individual from their previous work together. Their purportedly fraught history prompted the plaintiff to send the following email to three superior officials in the State Department — the employer is a government contractor — with the subject line “Leadership.”
The email is quite long. But you can read it all here.
The State Department replied and confirmed that the defendant, her employer, had no control over her supervisor.
So, the plaintiff replied, copying the defendant, explaining, “I sent an email with what I knew and thought crucial information to the department’s leadership. . . . My email was about misconduct, among other things, that I felt compelled to report. . . . Again, I thought this was detrimental information.”
Two days later, the defendant fired her for what it perceived as unprofessional behavior.
So, why isn’t this retaliation? After all, federal anti-discrimination law prohibits reprisals against workers who complain about discrimination and retaliation, otherwise known as a protected activity.
But here’s the thing. An employee must show (1) that she reasonably believed that the employment action she opposed violated the law and (2) that her conduct in opposition was reasonable.
And that’s not what happened here. The lower court didn’t see it that way. And neither did the Fourth Circuit Court of Appeals:
[Her] brief and tangential invocations of ‘retaliation’ and ‘harassment’ without more do not rise to the level of protected activity. The full email reads like what the district court correctly described as a ‘rambling diatribe’ with much ‘innuendo about personal stuff.’ The email’s context, moreover, reinforces that its intended purpose was not to oppose Title VII violations but was to express [the plaintiff’s] personal opposition to her rumored supervisor and the State Department’s methods for selecting supervisors.
Heck, the subject line of the email wasn’t “retaliation” or “harassment” but “Leadership.” The references to “retaliation” and “harassment” in the body of the email were vague and unspecific to qualify as protected activity. But she did explain that she was “not complaining, per se.”
Just be careful, folks. There are no “magic words” to complain about discrimination and retaliation in the workplace. An email regarding “leadership” or even “rainbows and lollipops” could amount to a protected activity, depending on the content and underlying circumstances. It could also be protected concerted activity and invoke certain rights under the National Labor Relations Act.
So, tread carefully after receiving one.