It often happens that employees who complain about workplace discrimination don't actually have a viable discrimination claim, but the employer's vindictive response to the internal discrimination complaint hands the plaintiff a retaliation case on a silver platter. That is what happened here.
The case is Vogel v. CA, Inc., a summary order issued on October 25. Vogel worked for a computer software company. At some point, he was recruited by Kozak to join the company's India Service Provider Team, eventually answering to Perlman. In early 2010, Vogel complained that he was being treated differently because of his race. Afterward, Perlman treated him badly and Vogel was fired because he did not meet his sales quotas. Here is what the Second Circuit (Lohier, Livingston and Rakoff [D.J.]) does with the case: 1. Vogel has no underlying discrimination claim even though supervisors uttered racial comments. While Kozak said that "Indians would rather work with Indians," Kozak said this shortly before he recruited Vogel to work on the India Service Provider Team, undercutting any inference of discriminatory intent. And it was Perlman and not Kozak who allegedly treated Vogel like garbage until the date Vogel was fired. While Perlman said that "Vogel does not work well and play well with the guys in India," that proves nothing because the record shows that Vogel had a tense working relationship with his team members in India. Summary judgment is affirmed on the discrimination claim. 2. The retaliation claim is a horse of a different colour. This is what I mean when I say the cover up is worse than the crime. Think of Watergate. Nixon's people broke into the Democratic headquarters. That was bad. But it was the cover-up -- where Nixon obstructed the criminal investigation into the break-in -- that led to Nixon's resignation, spending the final years of his life in New Jersey. What happened to Vogel was no Watergate, but there will be a trial in this case, and that's bad for the defendant. The issue is whether Vogel can prove an adverse employment action, which exists if the employer's response to his good-faith discrimination complaint would dissuade a reasonable employee from complaining about discrimination in the future. Perlman singled out Vogel for hostile treatment, harassing him on conference calls, making jokes about him in front of colleagues, removing him from meetings, yelled at him, called him names, told him his actual performance was irrelevant and repeatedly said he did not want Vogel on his team. Vogel was fired 11 months after complaining about discrimination. The Court of Appeals says this is enough for a retaliation claim, as Vogel testified that Perlman kicked him around shortly after he complained about the discrimination. This is interesting reasoning, as many claims that management hounded the plaintiff following a discrimination claim fail on the adverse action element of the prima facie case. But if you put an employee through the wringer, that can be enough to dissuade a reasonable employee from complaining.
1 Comment
Dana Williams
11/15/2022 04:30:27 pm
Absolutely the coverup is worse than the original crime or injustice. unfortunately, it is not the employee or ex employee that does not come forward, but so many attorneys who don't have the integrity or principle related motivation to do the right thing and represent the average Joe who don't have a lot of assets to their name. i believe the the demonstrated bias of ignorance that must correlate with a minority or victim status is prevalent, which is not true, as to why minority people are usually targeted far more than anyone. The defendants can utilize tactics such as retaliation via fabricated criminalizing the complainant, blackballing them in a profession only to be hirable in less desirable demographical regions or demoted roles in isolation, various harassment, redirecting attention on the person's weaknesses or a exaggerated negative past of character traits, bogus mental illness, or appearance of instability which is really related to the relentless defamation of a person's reputation, which then turns around and minimizes a life of ruins by joking about it. When the system betrays a person who doesn't have their right to the due process for justice or their voice, that is true in saying retaliation can be worse than the crime. In fact, i have even heard of some people going so low there are some victims who came forward to report or speak up about discrimination related to a protected right or public policy, only to have a corporation or company have the convicted offender join in on the recidivism in retaliation! So absolutely, your statement is correct, I would hire you if I had a plentiful, evidential case! Thank you for sharing then example representing being a solution to the problem(s), and not part of the problem.
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AuthorStephen Bergstein is a civil rights lawyer in Orange County, N.Y. He has briefed or argued more than 200 appeals in the state and federal courts. Archives
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