Don't slap the mouth that bit you: Retaliation claim succeeds

Brinton M. Wilkins
Utah Employment Law Letter

You shouldn’t bite the hand that feeds you. But what if you are the person doing the feeding and you feel you have been bitten? Should you slap that mouth? Recently, Salt Lake County was embroiled in a sexual harassment claim. One of the complaining employee’s coworkers, Michael Barrett, helped her win her case. But it appears the county wasn’t pleased that Barrett had done so and demoted him. Read on to see the evidence he provided that helped him succeed in his own action against the county and to learn what the county could have done to minimize—if not entirely remove—its exposure.

Retaliation proved at trial

After helping a colleague successfully pursue a sexual harassment claim, Salt Lake County demoted Barrett and hired a new employee to take his old job. Barrett sued the county, arguing that his demotion was retaliatory and violated Title VII of the Civil Rights Act of 1964.

The county argued that it demoted Barrett because he was a poor worker. At trial, however, Barrett presented evidence that for the 14 years he had worked for the county, he had received multiple promotions and only positive work reviews—until he started helping his coworker.

The jury decided in Barrett’s favor. The court didn’t order the county to reinstate him to his old job (which would have required removing the newly hired employee), but it did order the county to allow him to continue his new job but be paid the same amount he had been paid before the demotion.

The county appealed to the U.S. 10th Circuit Court of Appeals in Denver (this court’s rulings apply to all Utah employers).

How to prove retaliation at trial 

The 10th Circuit upheld the trial court’s decision. To succeed on a Title VII retaliation claim at trial, an employee must provide enough evidence to support a finding that any adverse action taken against him (such as a demotion or termination) was taken in retaliation for working to enforce or protect civil rights. 

And there was ample evidence that was the case with Barrett. For instance, he had received “promotion after promotion, good review after good review.” The disciplinary proceedings that resulted in his demotion began almost immediately after his “supervisor learned of his involvement in the sexual harassment complaint.” Other employees who were witnesses in the harassment case were also subjected to discipline. And the supervisor responsible for at least some of the disciplinary proceedings lost the records for them.

Thus, the 10th Circuit found there was sufficient evidence that Barrett’s demotion was in retaliation for assisting his colleague.

Trial court’s ability to fashion appropriate remedy

The county also argued that it was improper for the trial court to order that Barrett be compensated at his predemotion pay grade because doing so resulted in a “windfall” of more pay for less work.

The 10th Circuit didn’t like that argument at all. The trial court’s order was an appropriate remedy that protected not only Barrett’s rights but also the interests of the innocent employee who had been hired to replace him.

According to the 10th Circuit, “Surely the county doesn’t mean to suggest the district court had to fire the innocent worker and give Mr. Barrett his job back.
Neither can the county seriously suggest its decision to hire someone else as a result of its Title VII violation leaves the district court powerless to issue any equitable relief to Mr. Barrett. . . . When the county chose to hire someone to replace the wrongfully demoted Mr. Barrett it bore the risk that the day might come it would have to restore Mr. Barrett as much as possible to his former position.” Barrett v. Salt Lake County, 2014 WL 2619799 (10th Cir.).

Lessons learned

Frequent readers of this newsletter may be wondering why the 10th Circuit didn’t use the familiar “burdenshifting” analysis that is used in most Title VII retaliation claims. Under that analysis, an employee alleging retaliation must establish a prima facie (minimally sufficient) case of retaliation. If he does so, the employer can avoid liability if it can provide proof that the action it took against him was for legitimate nondiscriminatory reasons. If it provides that evidence, the employee can win only if he can show that the stated reasons for the action are pretexts used to cover up illegal retaliation.

Neither the trial court nor the 10th Circuit used that analysis for one simple reason: It doesn’t apply at trial. The burden-shifting framework applies to pretrial motions for summary judgment (requests to have the case dismissed without a trial). But if a retaliation case moves all the way to trial, the only question the jury has to answer is whether the employee has presented enough evidence to justify deciding that the action taken against him was retaliatory.

Thus, employers shouldn’t try to take any refuge in the burden-shifting system. Rather, they should simply make sure their actions are justified, uniform, appropriate, and nonretaliatory.

Furthermore, employers should be aware that courts have broad powers to fashion equitable remedies. If an employer does something that violates Title VII, the remedy a court imposes may be uncomfortable. 

You can contact the author at or 801-350-7620.

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