Attempting To Flip The Script: When An Employer’s Investigation Targets Employee Complaining About Discrimination

Title VII of the Civil Rights Act of 1964 (Title VII) protects employees against retaliation for opposing any practice made an unlawful employment practice under Title VII. Under well-established law, an employee who makes an internal complaint of race discrimination is protected from retaliation by Title VII. Generally, employers respond to the victim’s race discrimination complaint by conducting an investigation into the allegations. During the course of the investigation, employers will sometimes ask the employee what action he or she wants taken in response to the complaint. After completing their investigation, employers will generally make a determination regarding the merits of the complaint, including a finding as to whether the complainant is credible. Unfortunately, the conclusion often reached by employers is that the victim’s race discrimination is meritless. Moreover, employers frequently seek to obtain evidence during the investigation that can be used to justify a finding that the complaint is baseless and the complainant is not credible. The U.S. Eighth Circuit Court of Appeals decision in Pye v. NuAire, Inc., 641 F.3d 1011 (8th Cir. 2011) is illustrative of circumstances where an employer’s investigation arguably targets the employee who makes a race discrimination complaint.

Possible Ploy To Trap Complaining Employee

In that case, Lionel Pye (Pye) brought a retaliation claim under Title VII against NuAire, Inc. (NuAire). On the day that he was hired by NuAire, Pye asked the payroll administrator to fill out a two-page employment verification form that he needed to submit to the county in order to qualify for housing assistance. The payroll administrator told him to return in one week after he had received a paycheck as a regular employee. One week later, Pye returned to the payroll administrator’s office. The payroll administrator told Pye to come back later because she had not yet gotten around to filling out the employment verification form. Pye explained his situation, but the payroll administrator said she did not care about his situation and referred to the form as “dumb.” Pye left the office, but returned to ask the payroll administrator when he should come back. While Pye was standing in the doorway and before the payroll administrator realized that he had returned, Pye heard the payroll administrator used a racial slur in reference to him. After she finally saw Pye standing the in the doorway, the payroll administrator then filled out the form and faxed it to the county. A few weeks later, Pye learned from the county that it had only received part of the form. Pye returned to the payroll administrator’s office that same day and she was rude to him again.

That same month, Pye presented a written complaint to his supervisor about the payroll administrator’s behavior. Pye complained that the payroll administrator had referred to him by using a racial slur and had not properly completed the employment verification in a timely manner. Pye’s supervisor referred the matter to NuAire’s director of human resources. The human resources director reviewed Pye’s complaint with the payroll administrator. The payroll administrator admitted to calling the form “dumb,” but denied Pry’s other allegations. That same day, the human resources director sent a note to a vice-president at NuAire stating that the investigation should be conducted by someone else because she was friends with the payroll administrator. The human resources director also said that she was “very upset at the allegations that this person [Pye] has made, and with the number of people we come in contact with in our jobs—without the benefit of witnesses—we are very vulnerable for these types of allegations.”

A few days later, the human resources director met with Pye and his supervisor. Pye alleged that the human resources director began the meeting by telling him that she did not believe his allegation that the payroll administrator used a racial slur in reference to him and she had known the payroll administrator for many years, and the payroll administrator was not a racist. Pye informed the human resources and his supervisor that he had lost the housing assistance. Pye alleged that his supervisor then asked him with disdain what he wanted to make the problem go away. When Pye responding that he wanted to be helped or compensated for what happened, the supervisor continued to ask him what he wanted to make the problem go away. Pye responded by saying that he had been requesting to move into different jobs in the company, at which point the supervisor asked him if he wanted a position with more money, more benefits, or perhaps a company car. Pay asked what was usually done in this type of situation and said he wanted the matter handled in the customary manner. Pye also said that a company car would be nice. Pye further asked the human resources director whether, if she could not handle the matter properly because of her friendship with the payroll administrator, she could give his complaint to someone higher up in the company.

After the meeting, the human resources director sent an e-mail to the vice-president stating that Pye “was shaking us down” because he wanted a promotion, money, and a company car “for his trouble.” She also stated that Pye had said that “he doesn’t want to take it to the next step because a multi-million dollar company like NuAire would go out of business.” NuAire’s witnesses testified that they believed Pye’s language was a reference to filing a lawsuit. The human resources director suggested that a lawyer be consulted to determine whether NuAire could fire Pye for making threats. The vice-president responded that he did not need to consult a lawyer and instructed Pye’s supervisor to hire him. After Pye’s supervisor notified him of his termination, Pye contacted the human resources director. The human resources director told Pye that he was fired for attempting to obtain a promotion and/or money and a company car through coercion and intimidation. The trial court dismissed Pye’s retaliation claim. On appeal, the Eighth Circuit reversed the trial court’s decision and reinstated Pye’s retaliation claim.

In reversing the trial court’s decision, the Eighth Circuit determined that a reasonable jury could find that Pye was fired in retaliation for complaining about race discrimination because there was a direct specific link between his termination and discrimination complaint. A direct specific link existed, the appellate court explained, because the proffered reason for Pye’s termination was “inextricably intertwined” with his protected conduct of complaining about race discrimination. Moreover, the appellate court pointed, because NuAire used Pye’s monetary demand, which was “prompted by the investigator’s questions” during the investigation, to fire him for intimidation, coercion, and threatening behavior, a reasonable jury could find that the internal investigation involved a ploy to trap Pye into making a monetary demand and then use the monetary demand as a pretext for retaliation. 

Employees Should Exercise Caution When Discussing Remedies

The decision in Pye illustrates that employers’ internal investigations into race discrimination complaints by employees are often highly questionable, if not fatally flawed. Unfortunately, some employers may use an internal investigation to obtain evidence which can be used to cast doubt on the credibility of the complaining employee and ascribe inflammatory motives, whether financial or otherwise, to the employee’s complaint. The decision in Pye further establishes that employees should be very careful when responding to an employer’s questions regarding their desired remedies in resolving the discrimination complaint, including discussing a monetary payment, an increase in compensation, or promotion. Under such circumstances, employees should consider consulting with an employment law attorney before discussing possible remedies so that their responses cannot be characterized as a “shake down” or “threats.” In the context of making an internal complaint of discrimination and responding to the employers’ questions during their investigation of the complaint, employees should keep in mind that a fundamental purpose of a discrimination complaint is notify the employer about discriminatory employment practices and give the employer an opportunity to stop the discriminatory employment practices. In the context of making an internal complaint of discrimination, seeking or obtaining remedies beyond ending the discriminatory employment practices will often require involvement of an employment law attorney and the filing of a lawsuit.

Consultation With Central Florida Retaliation Attorneys

Based in Ocala, Florida and representing employees throughout Central Florida, we have extensive experience representing employees who have been retaliated against for complaining about discrimination or harassment in the workplace. If you have been retaliated against, or have questions about an employers’ internal investigation into your complaint of discrimination or harassment, please contact our office for a free consultation with our Central Florida retaliation attorneys. Our employee rights law firm takes employment retaliation cases on a contingency fee basis. This means that there are no attorney’s fees incurred unless there is a recovery and our attorney’s fees come solely from the monetary award that you recover.