Tuesday, July 21, 2009

Alabama Case Spotlights Workplace Retaliation

Is retaliation in the workplace becoming a widespread problem?

The answer appears to be yes. The Alabama case of fired Justice Department whistleblower Tamarah Grimes virtually drips with retaliation. My own firing at the University of Alabama at Birmingham (UAB) reeks of retaliation.

Now even the conservative U.S. 11th Circuit Court of Appeals, based in Atlanta, seems to recognize that workplace retaliation is a problem.

A three-judge panel overturned a ruling by the federal district court in Mobile, Alabama, finding that a retaliation claim against Home Depot could go forward.

Here's the crux of the story from the Mobile Press-Register:

Alexander Raya and David Corbitt accused a male human resources manager of sexually harassing them and then getting them fired in 2005 for bogus reasons when they reported his behavior.

Corbitt managed the Montlimar Drive store in Mobile, while Raya opened The Home Depot in Daphne in 2000 and later became manager in Pensacola.

A three-judge panel of the 11th U.S. Circuit Court of Appeals ruled that Chief U.S. District Judge Ginny Granade properly found in favor of the company on the sexual harassment claims.

But the panel determined that a jury should decide whether Home Depot USA fired Raya and Corbitt in retaliation for complaining about the conduct of Leonard Cavaluzzi Jr., who was regional human relations manager in 2005.

What was the key to the appellate court's ruling? The Press-Register reports:

"Significantly, Corbitt and Raya note that they were terminated 25 days after they made formal complaints of Cavaluzzi's harassment," the judges wrote.

I can identify with that time frame. My supervisor at UAB, Pam Powell, conducted a five-month harassment campaign against me not long after telling our staff that, upon her retirement, she intended to push for the promotion of one of my coworkers, Matt Windsor, as her successor. Windsor is a fine fellow, but he had roughly 20 years less experience than me.

I didn't give much thought to Powell's plans because I figured they would prove irrelevant in the end. When Powell retires, it probably will not be her place to name her successor; that task will fall to someone who still is employed at UAB.
Based on my experience over 19 years at the university, I figured it would hire an external candidate to replace Powell, so I didn't plan to sweat it.

But I did think it was odd and inappropriate for Powell to disclose this plan to her staff. And it was certainly inappropriate for her to trash her superiors in the process. "I've worked too hard to let them tear apart this group when I'm gone," she told me with cold-blooded determination.

I took that to mean two things: (1) Powell didn't have much regard for Associate Vice President Dale Turnbough, who probably will appoint Powell's successor, or Vice President Shirly Salloway Kahn, whom Turnbough is likely to consult about the appointment; (2) Powell would do just about anything to get her way in the matter.

As Powell's behavior toward me took a turn for the worse in December 2007, I started to think "anything" might include slitting my professional throat. After all, UAB could easily scuttle Powell's plans by saying, "Look, we can't promote Matt Windsor over an employee who has 20 years more experience than he does. Plus, Shuler is in a protected class, and we would be inviting an age-discrimination lawsuit. It makes no sense, professionally or legally."

But perhaps Powell, in her mind, could take care of that issue by making my work life so miserable that I would seek a transfer, get an external job, or die. I doubt that she cared which route I took--as long as I wasn't a perceived roadblock to her grand plans.

When Powell informed me on or about April 15, 2008, that she was going to give me an oral warning for failing to fill out a vacation sheet to her satisfaction, I decided that the situation had become so alarming that I had to say something. I told Powell that it looked to me like she was discriminating against me because of her desire to promote my much younger colleague. She proceeded to then hit me with a written warning for alleged "unprofessional conduct."

I met with Dale Turnbough roughly one week later (on or about April 23) and told her of my concerns that I was being discriminated against because of my age. I also told Turnbough of Powell's plans regarding Matt Windsor--which appeared to be news to Turnbough--and that the discrimination seemed to coincide with Powell's disclosure about those plans. Turnbough indicated that she would take care of the problem.

On that same date, I filed a formal grievance against Powell in UAB Human Resources.

Exactly two weeks later, on May 7, I was placed on administrative leave and told my computer usage was being "investigated." This happened even though no one had questioned my computer use before--given me any warnings, etc.--and no one else in our group was being "investigated." This happened even though UAB policy states that an employee is to use the grievance process without fear of reprisal.

On May 19, I was fired. I would say I faced a pretty clear reprisal for filing a grievance and complaining about discrimination. So much for UAB's policies.

By my unofficial count, it took 18 work days for me to be fired after complaining to Powell's superior about age discrimination. If you add weekends, it was 26 days.

Retaliation cases often hinge on the time frame involved. If an employee complains about unlawful activity in the workplace and faces an adverse job action nine months later, a retaliation claim might not hold up.

But the 11th Circuit, which hardly is know for its favorable treatment of employees, says an adverse job action roughly 25 days after a formal complaint is significant.

Tamarah Grimes was fired from her Justice Department job in Montgomery, Alabama, roughly eight days after writing a letter to Attorney General Eric Holder about misconduct in her office. I was fired 18 to 26 days after complaining about unlawful discrimination at UAB.

We live in a world where some employers show stunning arrogance and stupidity--not to mention disregard for the law. UAB and the U.S. Justice Department have shown that they are among those employers. Now it looks like Home Depot has joined them.

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