Takeaway: Patterson v. Georgia Pacific highlights the risks inherent in making a termination decision based on a technical infraction that lacks apparent importance. It also shows that a lack of strong oversight by an organization’s HR department can create significant vulnerabilities.
Strictly interpreting a rule, policy or other directive governing employee conduct can lead to decisions that may appear pretextual. Where an offense is objectively minor, and termination may be disproportionately severe, the employer should carefully consider lesser alternatives, especially where the employee has made a complaint of discrimination or otherwise engaged in protected activity.
Additionally, superficial or overly deferential HR oversight and review can open the door to claims of wrongful conduct. Independent assessment of a termination recommendation from a supervisor can provide a critical check on any appearance that the supervisor was the cause of the termination decision, despite lacking authority to make it himself or herself. An employer with a robust process for such decisions thereby limits the risk of cat’s paw liability, based on the supervisor’s conduct.
Approval of a termination decision should not be a rubber-stamp affair. Thoughtful consideration and review can avoid many pitfalls.
?The 11th U.S. Circuit Court of Appeals ruled that Title VII’s anti-retaliation provision applies to all employees, even HR managers acting in the course of their employment duties. The provision extends to the HR manager’s protected actions in opposition to the conduct of a former employer.
In December 2015, the plaintiff was hired as a senior HR manager by a product manufacturer and assigned to work at the company’s mill in Alabama. Prior to this, the plaintiff had been a human resources business partner at a health system.
Background
In June 2017, rumors of union organizing surfaced, and the plaintiff was asked by her supervisor to schedule a meeting about it on June 29. The plaintiff advised him that she could not schedule the meeting for that date because she had to attend a deposition. The plaintiff’s supervisor scheduled the meeting for June 30.
The plaintiff attended the June 30 meeting and was asked to assist the plant manager with preparing a union avoidance plan. The following week, the plaintiff went on vacation, but worked on the plan and communicated with the plant manager about it.
By July 19, the plan was ready for final review. Nonetheless, the plant manager told the plaintiff’s supervisor that he was unable to reach the plaintiff while she was away and that she failed to do the requested work.
As a result, the plaintiff’s supervisor reviewed her time records, which evidenced alleged attendance issues. On July 12, the plaintiff’s supervisor visited the plant to investigate.
During the July 12 visit, the plaintiff’s supervisor asked another HR professional about the deposition the plaintiff attended on June 29. That HR professional had no details.
The plaintiff’s supervisor then asked the plaintiff herself, who advised him that she testified in a case regarding three female employees who were terminated from her previous employer while on Family and Medical Leave Act time off and that each had been pregnant or had just given birth when fired.
The plaintiff’s supervisor asked the plaintiff who she supported, and the plaintiff told him she testified “on behalf of the ladies.” In response, her supervisor told her that meant she “went against” her previous employer and having done so “made things clear” to him. Seven days later, on July 19, the plaintiff was terminated.
Case Advances
The plaintiff sued the company, alleging unlawful retaliation under Title VII of the Civil Rights Act of 1964. The company’s motion for summary judgment was granted on the grounds that she was not covered by Title VII’s anti-retaliation provision because she was an HR manager and because her alleged protected activity related to her previous employer. Regarding the “manager exception,” the district court found persuasive the argument that a manager who disagrees or opposes the actions of her employer in the course of performing her job does not engage in protected activity. The plaintiff appealed.
Strictly construing the text of Title VII’s anti-retaliation provision, the 11th Circuit reversed the lower court’s ruling. The applicable provision makes it “an unlawful employment practice for an employer to discriminate against any of its employees … because she has opposed any practice made an unlawful employment practice by this subchapter, or because she has made a charge, testified, assisted or participated in any manner in an investigation, proceeding, or hearing under this subchapter.”
The appeals court found that because Congress did not qualify the word “any,” it means “all” employees, including HR managers, and that there are no qualifications in the opposition clause, either explicit or implicit, that would somehow serve to exclude management employees.
The court similarly cited the text of the opposition clause in finding there was nothing that makes it lawful to retaliate against an employee for opposing conduct, even if the employee’s opposition was part of job duties and occurred at a prior employer. The text forbids retaliation against any individual for having “opposed any” practice. As such, a current employer “may not retaliate for opposition clause conduct, even if it is directed at or involves only a former employer.”
Patterson v. Georgia Pacific LLC, 11th Cir., No. 20-12733 (July 5, 2022).
Katelynn Gray is an attorney with Duane Morris LLP in New York City.
