A trial court erred in ruling for an Iowa company on a retaliation claim based on a supervisor allegedly throwing a worker's complaint in the trash and telling her to leave because he never wanted to see her again, the U.S. Court of Appeals for the 8th Circuit ruled (Young-Losee v. Graphic Packaging International Inc., 8th Circuit, No. 10-2012, 1/26/11).

Graphic Packaging International Inc. plant supervisor James Shelley wadded up Rebecca A. Young-Losee's formal harassment complaint, dismissed it with a pejorative  term and threw it in the trash. He then told her "I want you out of here" and said he never wanted to see her again.

This is an example of how supervisors can cause vicarious liability for their employers. Supervisory employees must understand that when an employee makes a complaint, it is to be handled with respect and forwarded to human resources for investigation, pursuant to the company's policy.

Often when a supervisor receives a complaint, the first reaction is to feel blame and frustration and even anger. Relief is the more proper response since once a complaint is made, it can be analyzed through a proper investigation.

After Shelley threw the complaint in the trash and told her to leave, Young-Losee, an administrative assistant, assumed she was fired. But after an investigation, the human resources director told Young-Losee to return to work. She refused, and her refusal was treated as a voluntary resignation. She  claimed sex discrimination, hostile environment harassment and retaliation under Title VII of the 1964 Civil Rights Act and the Iowa Civil Rights Act.

A federal trial court in Iowa ruled in favor of the packaging company on all of the employee's claims and she appealed only the retaliation claim, the court said.

To violate Title VII, purported retaliation must have been harmful enough that a reasonable employee would have found It materially adverse, the appeals court noted, citing Burlington N. & Santa Fe Ry. Co. v. White (548 U.S. 53, 98 FEP Cases 385, 2006). An action is materially adverse if it "well might have dissuaded a reasonable worker from making or supporting a charge of discrimination," it said. Being fired for making a discrimination complaint - even if the discharge is rescinded after two days - could dissuade a reasonable employee from making a harassment complaint, it said.

"The facts here meet the Burlington standard, as they are more than petty slights or annoyances that often take place at work and that all employees experience," the appeals court concluded.  

Many companies use this type of fact pattern to train supervisors on how not to react when faced with an employee complaint of discrimination. Knowing that this does happen makes it easier for other supervisors to discuss.

Since it is best practice for a company to offer multiple ways for an employee to make a complaint, toll-free hotlines and follow-up have become quite popular. It is important for an employer to realize that making a complaint of discrimination is a very difficult act on the part of an employee, which deserves respect.      

Lindy Korn is a Buffalo attorney whose practice areas include sexual harassment and retaliation in the workplace.