Retaliation for Opposition Conduct - Affirmative Defense

    Plaintiff recognizes that her conduct in opposition unlawful employment practices is not absolutely protected under RCW 49.60 et seq. "When the employee's conduct in protest of an unlawful employment practice so interferes with his job performance that it renders him ineffectual in the position for which he was employed, such conduct is not protected by the statute." Selberg v. United Pacific Ins. Co., 45 Wn.App. 469, 472-73, 726 P.2d 468 (1986)(discussed below). This is the defendants' burden of proof. See Wrighten v. Metropolitan Hospitals, Inc., 726 F.2d 1346, 1354 (9th Cir. 1984)("The defendant employer is responsible for introducing evidence at trial that a plaintiff's actions were unprotected"); Johnson v. Multnomah County, 48 F.3d 420, 422 (9th Cir.)("The employer bears the burden of proving that the balance of interest weighs in its favor") cert. denied, 115 S.Ct. 2616 (1995);Tucker v. State of Cal. Dept. of Educ., 97 F.3d 1204,1210 (9th Cir. 1996)("Despite the government's greater interest in regulating workplace speech, when it restricts such speech it bears the burden of justifying its action, and its interests must outweigh those of the employee").

    The affirmative defense at issues require a focus on the nature of Plaintiff's opposition conduct. The defendants can only succeed on this defense if the manner of her opposition conduct caused her to be ineffective in her job. This is established by showing that the nature of the opposition conduct was in and of itself disruptive to the working environment or incompatible with Plaintiff's duties and responsibilities. (1)

    This is no evidence to support such a finding. Whether Plaintiff was otherwise satisfactorily performing her duties and responsibilities is not dispositive so long as her opposition activity was a substantial factor in the decision to discharge her.

    The rule that an employee's opposition can not interfere with job performance began with Hochstadt v. Worcester Foundation for Experimental Biology, Inc., 545 F.2d 222 (1st Cir.1976). Hochstadt involved a research biologist who raised havoc in her laboratory for three years and then protested her termination on Title VII grounds. She interrupted regular staff meetings, circulated rumors, commissioned a covert affirmative action survey, invited a newspaper reporter to examine confidential salary information, misused secretarial and copying services, ran up a $500 personal bill on the laboratory's telephone, was reprimanded on several occasions for poor work, and was the cause of two other research assistants leaving the laboratory. Id. at 227-229. In the face of Hochstadt's obstreperous behavior over a prolonged period of time, the court upheld her termination as legitimate and nondiscriminatory. Id. at 233. It adopted a balancing test for determining whether an employee's conduct is protected under § 2000e-3: a court must balance "the purpose of the Act to protect persons engaging reasonably in activities opposing ... discrimination, against Congress' equally manifest desire not to tie the hands of employers in the objective selection and control of personnel." Id. at 231. Subsequent case law has refined and qualified the rule in Hochstadt. "Hochstadt must be read narrowly lest legitimate activism by employees asserting civil rights be chilled." Wrighten v. Metropolitan Hospitals, Inc., 726 F.2d 1346, 1355 (9th Cir. 1984).

    In Selberg v. United Pacific Ins. Co., 45 Wn.App. 469, 472-73, 726 P.2d 468 (1986) the Plaintiff claimed age discrimination in that he was passed over for promotion in violation of RCW 49.60 et seq. After the discrimination suit was filed, the Plaintiff removed and copied allegedly confidential files from the employer's premises. Id. at 470. After the employer discovered that files had been copied during the discovery process, the employer attempted to discuss the matter with Plaintiff. Plaintiff, however, refused to answer questions or to otherwise discuss the matter, and he was fired for insubordination and for taking the documents without authorization. Id.

    Selberg amended his original discrimination complaint and included a claim for retaliatory discharge under RCW 49.60.210. United Pacific moved for summary judgment to dismiss the claim on the ground that Selberg's conduct was not protected by the statute and maintained that he was terminated for legitimate nondiscriminatory reasons. The motion was granted. Id.

    On appeal, the Court acknowledged that even though opposition to an unlawful employment practice is generally protected, such protection is not absolute. Id. at 472. The Court ruled that when an employee's conduct in opposition so interferes with job performance that it renders the employee ineffective in the job, the conduct is not protected. In Selberg, the Court focused on the employees excessive conduct in gathering evidence as the central issue. The Court instructed that the determination must be made considering the setting in which the activity arose.

    When the employee's conduct in protest of an unlawful employment practice so interferes with his job performance that it renders him ineffectual in the position for which he was employed, such conduct is not protected by the statute. Thus, an employee's conduct in gathering evidence to support his claim may be "so excessive" as to no longer be protected activity, and may afford an independent, nondiscriminatory basis for dismissal. In making this determination, the court must balance the setting in which the activity arose and the interest and motivations of both employer and employee.
        Id. at 472 (emphasis added).

    In making this judgment, the Court in Selberg distinguished Hochstadt and stressed that the opposition conduct must be unreasonable in order for conduct to lose it's protected status. "Consequently, cases following Hochstadt have stressed interference with job performance in determining whether opposition conduct was 'unreasonable' and provided a legitimate basis for discharge."Id. Citing EEOC v. Crown Zellerbach Corp., 720 F.2d 1008, 1015 (9th Cir.1983).(2)

    In Selberg, the defendant claimed that the close working relationship was destroyed as a result of the stolen files and insubordination. This, according to the defendant, made Selberg ineffective in his job and justified termination. Id. at 473. The Court rejected this argument. The subjective judgment of the supervisor was insufficient. Mere employee disloyalty was insufficient as a matter of law.

    There is no evidence, however, that Selberg's work performance was in any way inadequate or had diminished, that his "opposition activities" were disruptive or detrimental to employee morale, or that he had become ineffective as a company vice-president, save Mackie's subjective opinion. In summary, proof of disloyalty is insufficient by itself to serve as an independent, nondiscriminatory basis for Selberg's dismissal, and there is no objective evidence to support a conclusion that his conduct was "so excessive" as to interfere with his job performance. Hollingsworth, 37 Wash.App. at 395, 681 P.2d 845.
        Id. at 472-73 (emphasis added).

    In the case at bar, the affirmative defense that Plaintiff was rendered ineffective in her job relates to the Plaintiff's opposition conduct and deposition conduct, and not unrelated job performance issues. The mere fact that it was allegedly more difficult for Plaintiff to get along with her supervisor is an insufficient basis for invoking the defense as a matter of law. As in Selberg, Plaintiff's supervisor's (Welden) subjective opinion is irrelevant. Disloyalty is insufficient to serve as an independent reason for termination. Id.

    The Ninth Circuit Court of Appeals also distinguished Hochstadt on the basis that the employee's "protest actions resulted in poor work performance by her and also in diminished performance and reduced morale in other employees who worked with her." Crown Zellerbach, supra at 1014-15. "In each of the cases that deny a section 704(a) opposition claim on the basis of the Hochstadt rule, the plaintiff's protest activities significantly disrupted the workplace and sometimes directly hindered his or her job performance." Id. The Court in Crown Zellerbach found that "sending the letter to the school district had absolutely no effect upon the appellant's job performance or upon the workplace environment." Id.

    As applied to the facts in the case at bar, there is no evidence that the manner of Plaintiff's opposition activity nor the manner of her deposition "significantly disrupted the workplace" or "directly hindered her job performance." Crown Zellerbach, supra.

    In Mackowiak v. University Nuclear Systems, Inc., 735 F.2d 1159 (9th Cir. 1984), the Court again distinguished the Hochstadt rule on the basis that the rule can only be invoked when the employee's protest activities directly interfered with job performance - Hochstadt must be read narrowly.

    In Hochstadt, the court upheld the dismissal of an employee who ignored her duties to concentrate exclusively on the cause of women's liberation. We stated recently that the "true basis" of Hochstadt is that an employer may discharge employees who let protest activities interfere with their job performance. E.E.O.C. v. Crown Zellerbach Corp., 720 F.2d 1008, 1015 (9th Cir.1983). See also Wrighten v. Metropolitan Hospitals, Inc., 726 F.2d 1346, 1355 (9th Cir.1984) ("Hochstadt must be read narrowly lest legitimate activism ... be chilled."). There is no contention that Mackowiak's protected conduct impaired his competence as an inspector. Instead, his conduct flowed directly from his duties.  Id. at 1164-65 (emphasis added). In the case at bar, there is no evidence or even an allegation that Plaintiff's opposition conduct or deposition testimony impaired her competence as Rule of Professional Responsibility Counsel.

        In Wrighten v. Metropolitan Hospitals, Inc., 726 F.2d 1346 (9th Cir.1984), Plaintiffs claimed that defendant discriminated against them because they were Black, and sought declaratory and injunctive relief as well as damages. Id. at 1349. Plaintiffs were employed as nurses. Id. at 1350.

    In Wrighten, the Plaintiff wrote letters to the personnel director stating dissatisfaction with Black patient care and her employment situation. Plaintiff and others had three unproductive meetings with the personnel director and the defendant's President. Several members of the Black community were in attendance. At one of the meetings, Plaintiff made dramatic and specific charges of Black patient mistreatment. Soon thereafter both Plaintiffs called a press conference off hospital grounds to protest Black patient care at the hospital. Id. at 1350.

        The day after the press conference, Plaintiff's supervisor criticized her job performance because of the charges and the press conference. Plaintiffs were thereafter terminated from employment. Id.

    In Wrighten, the trial court concluded that Plaintiff exceeded the opposition protection of § 2000e-3 (Title VII) because she went "too far in her activities and general deportment." Id. at 1355. The Ninth Circuit reversed, and further distinguished Hochstadt; "Hochstadt must be read narrowly lest legitimate activism by employees asserting civil rights be chilled." Id. at 1355.

    Wrighten met with the hospital's affirmative action officer and president on several occasions before going public with her complaints about black patient care. Under these circumstances, and given the trial court's subsidiary factual findings, Wrighten's activities did not exceed the protection of § 2000e-3. There may be situations where activity such as Wrighten's, if coupled with conduct of a disruptive nature, may exceed statutory protection. It did not in this instance. Wrighten did not impede the goals of Emanuel by advocating good patient care. She did not abuse her duty as a nurse by advocating the needs of her patients. Patient advocacy by a nurse does not necessarily remove one from the protection of § 2000e-3.  Id. at 1355-56 (emphasis added). See also Laughlin v. Metropolitan Wash. Airports Auth., 149 F.3d 253, 260 (4th Cir. 1998)("We have previously held that under this balancing test, as long as an employee complains to his or her employer or participates in an employer's informal grievance procedure in an orderly and nondisruptive manner, the employee's activities are entitled to protection under § 704's opposition clause"); Hopkins v. Baltimore Gas & Elec., Co., 77 F.3d 745, 754 (4th Cir. 1996)(Activities such as "complaining to the employer" and "participating in an employer's informal grievance procedures," when done in a manner that is "not disruptive or disorderly," have been held to be opposition activities protected under Title VII).

1. E.g.,Pendleton v. Rumsfeld, 628 F.2d 102, 107-08 (D.C.Cir.1980) (participation in disruptive, noisy demonstration during work hours rendered EEO officers unfit to perform their duties); Gonzalez v. Bolger, 486 F.Supp. 595, 602 (D.D.C.1980) (employee's militant demands for paid time to prepare EEO complaints on behalf of himself and others, and other disruptive behavior, exceeded tolerable limits of protected conduct); Women Employed v. Rinella & Rinella, 468 F.Supp. 1123, 1126 (N.D.Ill.1979) (employee did not act in good faith in her opposition and engaged in loud and insubordinate conduct in the firm's working area).

2. Some federal cases uphold termination where the Plaintiff had personnel related responsibilities and advocated against the employers personnel practices. Under those circumstances, courts have held that an adversarial relationship is created preventing Plaintiff from doing her job. E.g. Smith v. Singer Co., 650 F.2d 214 (9th Cir.1981)((It was Smith's job to develop an affirmative action program for Singer, which he was incapable of doing given the adversarial position in which he placed himself with his employer)(distinguished in Wrighten at 1358 fn6); Nelson v. Pima Community College, 83 F.3d 1075, 1081 (9th Cir.1996)(whether a college administrator who disagreed with the college's affirmative action policy could receive First Amendment and Title VII protection for actions she took to undermine the employer policy - and "threw the whole college into turmoil"); Jones v. Flagship Int'l, 793 F.2d 714, 727 (5th Cir. 1986) (Jones was a licensed attorney hired by Flagship - Jones' principal duties were to investigate charges of discrimination brought against the company, to represent the company before state and federal administrative agencies, to "conciliate" such discrimination charges, and to prepare an affirmative action plan." Flagship fired Jones after learning that she had filed a charge of discrimination with the EEOC, had solicited others to join in her suit, and intended to serve as the named representative of a class action against her employer).