Has an employee engaged in protected activity such that he or she is protected from retaliation by applicable employment laws?
That is a question that comes up often in employment rights cases and was the question at issue in this case decided recently in Tennessee: Tenpenny v. Prime Now, LLC., No. 19-cv-00420 (M.D. Tenn. Dec. 7, 2020).
In Tenpenny, Plaintiff Tina Tenpenny worked for Defendant Prime Now, LLC (an Amazon company) as an Assistant Manager packaging and bagging orders at Prime Now’s fulfillment center in Nashville, Tennessee. Prime Now uses independent contractor delivery drivers. The delivery drivers would sometimes help Prime Now associates pack even though it was against Prime Now policy. In January 2018, Tenpenny became uncomfortable being around one of the drivers, Jarod Ryan. Her discomfort appears to be based text messages Ryan sent to Tenpenny and statements from her co- worker that Ryan was “crazy and dangerous” and was telling the other drivers, in crude terms, that Tenpenny was having sex with one of the other drivers. Due to her discomfort being around Ryan, Tenpenny avoided her own work area if Ryan was there.
The parties agree that Tenpenny complained about drivers in the slamming area, that she specifically mentioned Jarod Ryan, and that she told her manager that Ryan was texting her, but they disagree regarding the specifics of the discussion. The company claimed that her complaint was either a general complaint about drivers in the work area where they were not supposed to be, a complaint that Ryan was sending her text messages that made her uncomfortable, a complaint that Ryan made her uncomfortable when he was in her work area because of text messages, or some combination thereof.
In March 2018, Tenpenny told her manager that Ryan was continuing to send her text messages. She showed her manager one text message that appeared to be part of a lengthy exchange. At her manager’s suggestion, Tenpenny asked Ryan to stop texting her and he did.
Likely as a result of Tenpenny’s complaints, her manager instructed the assistant managers that they could not use drivers to help pack packages. This likely made Tenpenny’s co-workers unhappy. In June 2018, Tenpenny reported to HR that another supervisor told her that he had a dream Tenpenny was fired and “everybody was celebrating and cheering.” During this meeting, Plaintiff also mentioned to HR that Ryan sent her text messages.
After the meeting with HR in June 2018, Prime Now opened an official investigation into the text messages and Tenpenny’s claim that she was uncomfortable. Tenpenny stated that she did not want to pursue a harassment claim and was not asking for an investigation. Although she initially said she would provide copies of the text messages, she ultimately refused to do so.
Citing a number of inconsistencies and what HR characterized as evasive answers to questions regarding Tenpenny’s out-of-work relationship with Ryan, HR determined that Tenpenny had, at best, told “different truths,” and at worst, lied during the investigation. She terminated Tenpenny’s employment. Tenpenny sued.
In its defense, the company argued that Tenpenny’s complaint was not protected because she said she did not believe she was being harassed and did not want to file a formal complaint. It also argued that its termination of Tenpenny was justified because she did not cooperate with the investigation. The trial court rejected the company’s motion to dismiss the case, noting that Tenpenny had complained on more than one occasion and consistently stated that the text messages made her feel uncomfortable and that an internal review found that the complaints should have been reported as a possible violation of Amazon’s sexual harassment policy. The court said, there “is, at a minimum a question of fact regarding whether plaintiff’s complaints were protected activity.” A reasonable jury could conclude that her firing was retaliatory, the court said.
What is the law on this?
Companies often make the argument in retaliation cases that the worker is not protected by law against their retaliation because their report or complaint was not sufficient to garner protection. Workers engage in protected activity when, among other things, they complain about discrimination or harassment, request an accommodation, or participate in an investigation into alleged misconduct.
However, not all employee activity is protected. For example, the 5th U.S. Circuit Court of Appeals (the appeals court over Texas) recently held that a former university president alleging misconduct to the organization that accredited the college for which he used to work wasn’t protected activity — unlike claims made to the EEOC. The 7th Circuit similarly ruled that leaving work sick was not protected activity. In another instance, the 8th U.S. Circuit Court of Appeals held that a worker’s complaint to company officials that a colleague was subjected to racial bias wasn’t protected activity because she didn’t have an “objectively reasonable basis” for believing that a Title VII violation had occurred.
Properly reporting discrimination or harassment in a way that creates legal protection against retaliation can be tricky. Employees need to be straight-forward, use magic words like “discrimination” and “harassment” rather than being vague out of fear or a desire not to be “too mean.” Also, employees should make all such reports to their manager or HR in writing. Email is fine as long as you print or send a copy to your personal email too so that you can later prove you made the report.
Once employees complain about discrimination or harassment or participate in an internal investigation into alleged misconduct, they are engaging in protected activity. If the company then retaliates against them, a qualified employment rights attorney will be more likely to be able to assist them if they have made their reports clear, unquestionably about “discrimination” or “harassment” and in writing.