Legal Summaries: Employment Law

by Elizabeth Dillon
Guynn, Memmer & Dillon, P.C.
Roanoke, Virginia


Burlington Northern and Santa Fe Railway Company v. White, __ U.S. __, 126 S. Ct. 2405, 165 L. Ed. 2d 345 (2006):

In June, the United States Supreme Court decided the standard for examining a retaliation claim and whether the retaliation had to be work-related.  After complaining about gender discrimination, the employee was assigned to more physical duties within her job description.  She filed an EEOC charge with regard to the reassignment and was suspended without pay after the Christmas holiday.  Approximately one month after the suspension, the employer gave the employee back pay and rescinded the suspension.

The Supreme Court held that the retaliation provisions of Title VII are broader than the discrimination provisions.  The retaliation provisions are not limited to actions that affect the terms and conditions of employment.  This interpretation “helps assure the cooperation upon which accomplishment of the Act’s primary objective depends.”  [Note that Von Gunten v. Maryland, 243 F.3d 858 (4th Cir. 2001), is specifically abrogated in this regard.]  The plaintiff must prove that a reasonable employee would have found the employer’s action “materially adverse.”  Such actions are ones that “might have dissuaded a reasonable worker from making or supporting a charge of discrimination.”

While the standard is an objective one, the Court stated that “[c]ontext matters.”  “A schedule change in an employee’s work schedule may make little difference to many workers, but may matter enormously to a young mother with school age children.”  Thus, whether the employee suffered “materially adverse” action in the case was a question for the jury.

Jordan v. Alternative Resources Corp., 458 F.3d 332 (4th Cir.  Aug. 2006):

An African-American employee was not protected by Title VII’s retaliation provisions when he complained to his employer about a co-worker’s isolated, racist remark that was made when news reports announced that two African-American snipers had been caught.  The employee could not reasonably believe that he was complaining about an unlawfully hostile work environment since an isolated comment does not amount to a hostile work environment.

Pascual v. Lowe’s Home Centers, Inc., 2006 WL 2226571 (4th Cir. Aug. 2006) (unpublished):

Summary judgment for the employer was upheld where an employee complained of name calling when he was nicknamed “Pretty Pants” and “Pretty,” but he did not state at the time that he found the nicknames to be sexual harassment.  The employer documented performance problems on more than one occasion, and, thereafter, the employee complained of sexual harassment to the human resource department.  The employer continued to document performance problems and terminated the employee.  With regard to retaliation, the employee could not show a causal relationship between his complaints and his termination.


Hux v. City of Newport News, Virginia, 451 F.3d 311 (4th Cir. 2006):

The Fourth Circuit Court of Appeals upheld summary judgment for the employer where a female employee did not receive a promotion to Fire Captain during four promotion attempts and alleged gender discrimination.  The employer showed that the employee was less qualified in many areas than those males that were promoted and that the employee had a history of friction and discord with male and female subordinates.  During the promotion interviews, the employee was emotionally upset causing her supervisors to question her abilities in stressful situations.  The Court noted that, “[o]nce an employer has provided a non-discriminatory explanation for its decision, the plaintiff cannot seek to expose that rationale as pretextual by focusing on minor discrepancies that do not cast doubt on the explanation's validity, or by raising points that are wholly irrelevant to it.”  The Court stressed that it cannot become the decisionmaker in personnel matters.


Yashenko v. Harrah’s NC Casino Company, LLC, 446 F.3d 541 (4th Cir. 2006):

If an employee would have been terminated from his employment regardless of use of leave under the Family and Medical Leave Act, then the employee does not have a right to job restoration when his leave ends.  While the statutory language is ambiguous, the regulations, 29 C.F.R. § 825.16 (2005), clearly resolve the issue.  With this decision, the Fourth Circuit Court of Appeals joined other Circuit Courts of Appeals that had already decided this issue.

Disclaimer:  The content of the Virginia Police Legal Bulletin does not constitute legal advice, nor does it reflect the opinions or views of the Virginia Police Legal Advisors Committee.