The United States Court of Appeals recently addressed the issue of whether a supervisor stated a claim for retaliatory discharge against her employer where the supervisor alleged that she was discharged for refusing to acquiesce to the retaliatory treatment of a subordinate employee. Thomas v. City of Beaverton, (— F. 3d —, 2004 WL 1811992, (9th Cir. (Or.), Aug. 16, 2004)
Anita Thomas’ job duties as a municipal court administrator for the City of Beaverton, Oregon, included hiring and supervising court clerks. One clerk under Thomas’ supervision, Susie Perry, had previously filed a racial discrimination and retaliation lawsuit against City after she had been passed over for a promotion. When a position as a senior court clerk opened up, Thomas’ supervisor instructed her to “be ready for a lawsuit when we don’t hire [Perry]” and told Thomas to document every incident or problem with Perry, no matter how small. After conducting interviews, Thomas concluded that Perry should be promoted to the position. However, Thomas’ supervisor disagreed and made Perry go through a second interview and work under probationary status for two months.
Although Perry eventually received the promotion, Thomas’ supervisor placed Thomas on extended probation and eventually terminated her employment.
Thomas brought a lawsuit against her supervisors and City alleging, among other things, that they retaliated against her for exercising her First Amendment right of free speech and for engaging in activity protected by Title VII. The federal district court granted summary judgment to the supervisors and City on all of Thomas’ claims. Thomas appealed.
Appellate Court Decision
The Court of Appeals found that the lower court erred in granting summary judgment on Thomas’ claim of retaliation under the First Amendment. In order to establish a claim of retaliation under the First Amendment, Thomas was required to show that she engaged in protected speech and that City took an adverse employment action against her because she engaged in protected speech. The Court found that Thomas presented sufficient pre-trial evidence that her alleged actions of refusing to acquiesce to City’s treatment of Perry amounted to speech that is protected under the First Amendment. Although Thomas did not explicitly tell her supervisors that she believed they were unlawfully retaliating against Perry, her actions in refusing to participate in the retaliation implicitly conveyed her disapproval of the activity.
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