Court Finds Creative Remedy for Retaliation

Posted 07-02-2014

Michael Barrett worked for Salt Lake County for 14 years. For years he’d received promotion after promotion, good review after good review. The trouble began when Mr. Barrett helped a colleague pursue a sexual harassment complaint against her boss. The County’s internal investigation showed that the complaint was entirely warranted but some in management apparently didn’t like the publicity.

Almost immediately after Mr. Barrett’s supervisor learned of his involvement in the sexual harassment complaint, a disciplinary investigation began. At the end of it, three workers who offered to serve as witnesses for the sexual harassment victim found themselves the targets of disciplinary action and Mr. Barrett found himself demoted, earning only 2/3 of his former salary. The supervisor responsible for some of these actions then somehow lost (or destroyed) the records that purported to justify the disciplinary action against Mr. Barrett. Mr. Barrett sued the County, alleging that he was the target of unlawful retaliation for helping a coworker vindicate her civil rights.

The jury found in favor of Mr. Barrett, and awarded him back pay and compensatory damages. The trial judge awarded Mr. Barrett’s attorneys’ fees, and held a hearing on the question of whether Mr. Barrett should be reinstated into his old job. It turns out that, after Mr. Barrett’s demotion, the County hired someone to take his position. Because the new hire played no role in the County’s unlawful retaliation, the judge didn’t think it was fair to order the County to displace him. Instead, the judge decided to leave Mr. Barrett in his current (demoted) position and to require the County to reinstate his pre-retaliation pay grade.

On appeal, the County decried this result as giving Mr. Barrett the “windfall” of more pay for less work, but its claims were roundly rejected. The appeals court pointed out that, once the County was found liable for unlawful retaliation, the goal of federal anti-discrimination law was to undo the harm done, stating: “Surely the County doesn’t mean to suggest the district court had to fire the innocent worker and give Mr. Barrett his job back…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. That day has come.” The appeals court also granted Mr. Barrett his attorneys’ fees on appeal. Barrett v. Salt Lake County (10th Cir. 2014)

What this means to you:

Starting in 2009 and continuing through today, retaliation has been the #1 claim filed with the federal Equal Employment Opportunity Commission—more than any kind of discrimination or harassment. Managers who try to get even with employees for exercising their rights or helping co-workers do so open themselves and their organizations to substantial damages and attorneys’ fees, as this case shows.

 Information here is correct at the time it is posted. Case decisions cited here may be reversed. Please do not rely on this information without consulting an attorney first.

2015-06-12T22:24:06+00:00

About the Author:

Ann Kiernan has litigated claims of wrongful discharge and discrimination before state and federal courts and administrative matters before the New Jersey Division on Civil Rights, the National Labor Relations Board and the Equal Opportunity Employment Commission, representing both employers and employees. Ms. Kiernan co-hosted The Employee Rights Forum, a weekly radio call-in show reaching up to a half-million listeners in the New York metropolitan area, and her articles on employment law have been published in many books and magazines. Both as a firm partner and as a director, Ms. Kiernan gained solid experience in management and human resources compliance. She has worked with Fair Measures since 1997.