The Eighth Circuit recently ruled that while complaining about discrimination can be a protected activity, not all complaints about discrimination are protected. Here’s how that distinction was made.
Tracy Harrell, a lead customer service representative at Handi Medical, was approved for intermittent FMLA leave to care for her husband who has severe bipolar disorder.
Employee Storms Out, gets disciplined
After hearing that temporary changes in her department would result in her demotion, Harrell called her husband, who became angry and threatened to come to her offices to talk with the CEO. Harrell left the office because she was worried about her husband but was heard to say on her way out that she “has had it with this place” and swore loudly within earshot of customers. When asked a question by a co-worker, Harrell purportedly responded, “You are going to need to talk to [another manager]. I am done. I got to go. I am done right now.”
A few days later, CEO Mike Bailey met with Harrell and gave her a written warning stating that failure to observe workplace rules would result in further discipline, including termination. Harrell denied that she swore and said that she was frantic about her husband. When Bailey said it seemed like she always had an excuse, Harrell responded that Bailey was using her husband’s disability against her. At that point, the HR Director and another manager joined the meeting.
As the discussion got more heated regarding Harrell’s claim that she was discriminated against because of her husband’s condition, Bailey said that if Harrell “truly felt the way that she was describing that she would be better off working elsewhere.” According to Harrell, the other company officials at the meeting observed that she and her family were unhappy, and said that “maybe we should—can find an exit strategy when [the CFO] returns.”
Employee Storms Out Again, Gets Fired
Harrell left the meeting, muttering the company motto—“enriching lives”—in a disparaging way, at which point Bailey called Harrell back into his office and fired her.
Harrell sued the company in federal court claiming that she was discriminated against based on her marital status and retaliated against her for opposing that discrimination, in violation of the Minnesota Human Rights Act (“MHRA”), which among other things protects employees from discrimination “on the basis of the identity, situation, actions, or beliefs of a spouse.”
The district court dismissed her claims, prompting Harrell to appeal to the U.S. Court of Appeals for the Eighth Circuit.
Employee: “It’s All About My Husband”
Under the MHRA, Harrell’s claims of discrimination and retaliation required her to establish that suffered some sort of adverse employment action and a causal connection between that adverse action and her protected status (marital status) and/or protected activity (complaining about discrimination). The lower court concluded that the talk of an exit strategy did not rise to the level of an adverse employment action because “there was no agreement that an ‘exit strategy’ would actually happen or that Harrell would ultimately be terminated,”
The Eighth Circuit seemed less certain but ultimately declined to address that issue because the case could be decided on other grounds, namely that Harrell had failed to demonstrate that she engaged in protected activity. They explained that while an employee who opposes a practice forbidden under the MHRA does in fact engage in protected activity, not every complaint about discrimination is protected. Instead, an employee must have a good-faith reasonable belief that the conduct being opposed is actually a violation of the MHRA.
Employer (And Court) Agree: “No, It’s about you”
Here, the alleged protected conduct was Harrell’s complaint that Bailey, by issuing the written warning, was discriminating against her because of her husband’s illness and thus her marital status. The court concluded that while Harrell’s outburst may have been triggered in part by her husband’s situation, it simply did not support a reasonable belief that Bailey actually issued the written warning because of her marital status.
Moreover, the Eighth Circuit explained that Harrell’s marital status did not “give her license to engage in unprofessional conduct that would be unacceptable from any other employee.” The court concluded that a “baseless accusation that an employer violated the MHRA is not protected opposition under the reprisal statute.”
The appeals court similarly disposed of Harrell’s marital-status discrimination claim. Although the company mentioned the “exit strategy” after Harrell complained that her husband’s situation was being used against her, no facts supported an inference that her termination was based on her marital status. To the contrary, the court noted that the company had long granted FMLA leave to her to care for her husband. While the company did mention that Harrell and “her family” were unhappy, this was insufficient to show that the company’s actions were based on her husband’s situation rather than Harrell’s conduct and attitude.
Bottom Line
This is a useful case for Minnesota employers because it clarifies that simply claiming discrimination, without any real justification for doing so, does not automatically rise to the level of protected activity.
We hope that future decisions will help clarify the factors to consider in deciding whether an employee’s complaint is actually based on a reasonable good faith belief.