Eleventh Circuit Resets Title VII Retaliation Claim Standard

Undaunted by COVID-19, the Eleventh Circuit pressed forward with its work in Monaghan v. Worldpay US, Inc., 2020 WL 1608155 (11th Cir. Apr. 2, 2020), which reversed the district court’s grant of summary judgment for an employer, sending the plaintiff-employee’s Title VII race retaliation claim to a jury. The district court had both applied the wrong standard and failed to limit its analysis to the claims the plaintiff pled in her complaint.

While the plaintiff and defendant each argued about retaliation claims under the Age Discrimination in Employment Act (“ADEA”) and 42 U.S.C. § 1981 in addition to the Title VII race retaliation claim, and the district court accepted that these claims were on the table, the Eleventh Circuit addressed only the Title VII retaliation claim because that was the only one the plaintiff properly pled in the complaint. A party cannot bring claims by argument alone.

In addressing the Title VII race retaliation claim, the Eleventh Circuit traced its own history with the applicable standard. The Supreme Court supplied the standard for materially adverse actions in retaliation claims in Burlington Northern & Santa Fe Railway Co. v. White: whether the mistreatment “well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” 548 U.S. 53, 57 (2006). Accordingly, every circuit court of appeals adopted that standard. While the Eleventh Circuit correctly applied this standard twice, it reverted in Gowski v. Peake, 682 F.3d 1299 (11th Cir. 2012), to a pre-Burlington Northern standard that inquires whether the mistreatment was “sufficiently severe or pervasive” that it can be said to alter the terms, conditions, or privileges of employment, which otherwise accompanies hostile work environment claims. That former standard that recurred in Gowski was the one the district court in Monaghan applied. And so the Eleventh Circuit acknowledged its own deviation and reinstated the correct standard set out by the Supreme Court in Burlington Northern, reasoning that when there are conflicting prior panel decisions, the oldest one controls.

But the Eleventh Circuit didn’t stop there. Rather than remand to the district court to decide whether the plaintiff had satisfied the Burlington Northern standard, the court decided on its own that she had. The white plaintiff’s black supervisor had commented that the plaintiff needed a “suntan,” that “this little white woman is giving me drama over here,” and that “you white girls kill me” after the plaintiff revealed unfamiliarity with the concept of “give a damn” money.

After Monaghan reported these comments made by her supervisor, the supervisor berated her for 45 minutes about her audacity to complain, telling her that she had “cut her own throat,” that she was “fucked” and “better watch it” because the supervisor and her boyfriend knew where Monaghan lived. The court found that these statements “well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” Plus, she was fired. And she testified that was for “complain[ing] and complain[ing]” and for not fitting in. (Because being fired would also have satisfied the “severe or pervasive” standard, the district court’s error was not only in choosing a standard but in its application. But the Eleventh Circuit did not point this out.)

The bulk of the 40-page opinion was Judge Tjoflat’s partial concurrence and partial dissent, to which he attached the plaintiff’s complaint.

He dissented from the court’s decision not to address the retaliation claims brought under the ADEA and section 1981. While Monaghan amended her complaint merely by argument, the defendant’s response effectively consented to such an amendment. At that point, the “complaint provided the background for this litigation, nothing more.”

Posted by Keith Emanuel.

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