In E.E.O.C. v. A.C. Widenhouse, Inc. (06/24/2014), the
Fourth Circuit Court of Appeals affirmed a substantial plaintiffs’ jury verdict
in a case featuring claims of a racially hostile work environment, racially
discriminatory discharge, and retaliatory discharge. The lawsuit was brought first by the United States Equal Employment Commission (“EEOC”) on behalf of two black employees,
and also included additional claims brought by Contonious Gill, one of the
affected employees, after he intervened in the action.
Gill had worked for A.C. Widenhouse as a truck driver from
May of 2007 until his termination in June of 2008. During his employment, Gill was subjected to
racial epithets, which included use of the “N” word and the term “porch monkey.” He also heard racially charged jokes and
witnessed displays of objects such as nooses and confederate flags. Gill testified that he repeatedly reported
these incidents to superiors, who did nothing to remedy the problem. Gill was terminated in June of 2008 when he
was unable to complete a delivery due to illness. Gill alleged that the termination was due to
racial discrimination as well as retaliation for his reporting the harassment.
The jury found Widenhouse liable on each claim and awarded
Gill $105,000.00 in damages. The judge,
in turn, awarded Gill an additional $88,509 in back pay
and prejudgment interest. The judge
also ordered Widenhouse to pay $139,000 in attorneys’ fees and costs.
In its appeal to the Fourth Circuit Court of Appeals,
Widenhouse contended that the trial court erred by instructing the jury on the
law applicable to the claim of retaliation.
On this point, the trial judge instructed the jury that it should find Widenhouse liable for
violating Title VII's retaliation prohibition if the jury found that
retaliation for Gill's
protected activity of reporting racial discrimination was a motivating factor
in his termination. This instruction was
contrary to recent United States Supreme Court precedent holding that a
retaliation plaintiff must prove that the plaintiff’s protected conduct (here, Gill’s
complaints of harassment) must have been the “but-for” cause of the retaliatory
action.
While acknowledging the erroneous instruction, the Court of
Appeals nevertheless affirmed the verdict because Widenhouse failed to show
that the erroneous instruction affected the outcome of the retaliation
claim. In its analysis on this point,
the Court found significant the jury’s verdict sheet, which noted the jury’s
finding that the termination was “because of” his opposition to unlawful
harassment. The Court also found that
the jury’s finding of liability for the same conduct under a companion Section 1981 federal law theory to demonstrate further a lack of prejudice from the
erroneous instruction.
In affirming the jury verdict despite the erroneous jury
instruction, the opinion also demonstrates that the Supreme Court’s recent
pronouncement of a “but-for” causation requirement really is not the significant
change in the law that employers initially believed. Other recent cases decided by other courts
have previously noted that there can be more than one “but-for” cause, and the
opinion here seems to confirm the point.
Other commentators have discussed how the traditional analytical
framework for retaliation claims appears to have been altered little by the distinction
between “motivating factor” and “but-for” causation. We tend to agree that the but-for causation
requirement is unlikely to dramatically alter the danger presented by
retaliation claims when termination decisions closely follow an employee’s
complaints of work place discrimination or harassment.
