August 24, 2012
Tennessee Supreme Court Permits Retaliation Case to Proceed
In a decision on August 22, 2012, in the case of Perkins v. Metropolitan Government of Nashville," involving claims of alleged retaliation in violation of Title VII and the Age Discrimination in Employment Act, the Tennessee Supreme Court reversed the lower court's summary judgment in favor of the employer (Metro Government) and remanded the case for further proceedings.
Perkins involved an interesting factual scenario. The plaintiff employee had filed one lawsuit and had filed multiple EEOC charges when she came under investigation for alleged wrongdoing. Her employment was terminated as a result of the investigation, and she appealed that termination to the civil service board. Her civil service appeal was resolved by a settlement 18 months after the termination, and as a result of the settlement, the plaintiff employee was given back-pay and agreed that she would not seek reinstatement to employment.
The plaintiff employee then filed her lawsuit alleging that her termination was in retaliation for her EEOC charges and her earlier lawsuit. The trial court granted summary judgment to the employer, holding that the plaintiff employee could not establish an "adverse employment action," in light of her settlement. The Court of Appeals agreed.
The Tennessee Supreme Court disagreed, largely in reliance upon the U.S. Supreme Court case of Burlington Northern v. White (2006). In Burlington Northern," the plaintiff employee claimed a 37-day suspension without pay was reliatory, even though the suspension was later revoked and she was paid back-pay for the days she was suspended. She claimed that the 37 days without pay was "the worst Christmas of her life," because she was without an income, did not know she would receive back pay, and was very depressed. The U.S. Supreme Court noted that she may have been entitled to injunctive relief, as well as compensatory damages for emotional pain and suffering, as well as punitive damages and attorney's fees, even though she was paid back-pay.
The Tennessee Supreme Court in Perkins found this to be an analogous situation, noting that the plaintiff employee had gone 18 months between her termination and the eventual settlement of her civil service appeal. The Court discounted the employer's arguments that the situation was akin to a voluntary transfer or resignation (which does not constitute an "adverse employment action" for purposes of retaliation).