Know-Nothing Defense a Winner in Retaliation Cases

Jane Waterman-Joyce

A recent case out of the Sixth Circuit, Mangold v. Norfolk Southern Railway Co. reminds employers of the importance of keeping an employee’s participation in protected activity on a need-to-know basis as a preventative measure against retaliation claims.

In Mangold, the plaintiff filed suit against his former employer, a railway company, alleging termination in retaliation for protected activity. During his employment, the plaintiff had been notorious for prolific, almost-daily reporting of alleged safety violations, a form of protected activity under the Federal Railroad Safety Act.

At trial, it was undisputed that the plaintiff frequently and regularly engaged in protected activity, such as making safety reports, and that he had suffered an adverse employment action by first receiving a letter of reprimand and later being dismissed. As a result, the sole remaining key issue in his retaliation claim was whether the relevant decisionmakers knew about the plaintiff’s copious safety reports and were influenced by them when making decisions about his employment.

Because the court determined that none of the four individuals involved with the plaintiff’s discipline had any knowledge of the safety reports, the claim against the employer was dismissed on summary judgment. The plaintiff’s evidence was not enough to prove any of the decisionmakers knew he had engaged in protected activity, as his reports had not been seen or received by any of them. Even though the plaintiff made safety reports on a consistent and near-daily basis, the court could not impute knowledge of the plaintiff’s protected activity to the decisionmakers on this fact alone. To show knowledge, the plaintiff would have needed additional evidence that the four decisionmakers had viewed, received, or otherwise been made aware of the plaintiff’s reports. Because the four decisionmakers had no knowledge of the plaintiff’s protected activity, they could not have retaliated against him for it. 

Keeping the details of protected activity to only need-to-know parties and away from disciplinary decisionmakers can ultimately help employers avoid liability on retaliation claims, even when zealous employees engage in protected activity on a consistent basis. However, employers should not confuse decisionmaker need-to-know concerns with employee/witness confidentiality concerns, which raise separate issues under federal labor law. Employers concerned about compliance should contact a member of Sherman & Howard’s Labor and Employment Practice Group for advice.