News from the Courthouse

February 13, 2013, 8:30 AM

The federal court of appeals in Richmond reminded us of a principle that bears repeating: former employees can win retaliation suits even if the conditions about which they complain are not illegal. In a case involving Virginia Tech, the court of appeals dismissed all of the three female plaintiffs Equal Pay Act claims, but sent one plaintiffs retaliation claim under Title VII back to the district court for trial. Maron v. Virginia Polytechnic Institute and State Univ. Ms. Maron, who had complained about sex-based pay disparities, was told by a manager during a meeting intended to discuss her personal use of e-mail that she had shown very poor judgment and that she needed to stop pursuing the things that [she was] pursuing or [she would] ruin [her] career in a very public way. The manager told her she needed to become invisible and stay off the radar for the next six months at a minimum, while he would be watching [her] very, very closely. In addition, there was evidence that the manager told Ms. Maron that he did not know what [she] did, but whatever [she] did, [she] really pissed [two other managers] off. Even though these statements, reasonably perceived as threats to terminate her employment, did not rise to the level of adverse employment action needed to bring a discrimination case, they could reasonably be found to be sufficient to dissuade a reasonable employee from complaining about discrimination. Thus, reasoned the court, a jury could find in Ms. Marons favor on her retaliation claims.

PRACTICAL POINTER

Never allow a counseling session on one topic (e-mail abuse) to wander into another area (complaints about discrimination?) on which the manager may not be as prepared. And its seldom a good idea to tell an employee that she pissed off managers by complaining, or that someone would ruin your career in a very public way. Nuff said. --John M. Bredehoft