Attorney Harrison Oldham

Employees being able to discuss possible discriminatory events in the workplace is essential in order to attain a positive, efficient workplace environment. Compliance officers and HR specialists are put in place to help mitigate potential issues that employees may experience. However, that was not how things worked in the case of Badgerow v. REJ Properties, where a female employee (“Badgerow”) asserted that she experienced a hostile work environment and claimed that she was terminated due to her report with the company’s Compliance Officer. Following her termination, Badgerow filed claims against the company for unlawful retaliation, disparate pay, hostile work environment, retaliation under both Title VII and the Louisiana Employment Discrimination Law, and breach of contract claims, but in this article, we are going to focus primarily on her claim for unlawful retaliation under Title VII.

Badgerow was a female Associate Financial Advisor (“AFA”) for REJ Properties, Inc (“REJ”), where she worked from 2014 to 2016. REJ, was a private financial advisory practice who had principal advisors, which were all men. REJ originally hired Badgerow as a paraplanner, but she was later promoted to serve as one of the AFAs. Under REJ, financial advisors were a franchise of Ameriprise.  In order to obtain one’s license, an AFA has to work under one of the franchisees. In this case, Badgerow worked under one of REJ’s Principals, an individual named Gregory Walters (“Walters”).

During her employment, Badgerow believed that she was treated differently because she was a woman in a workplace that was predominately men. For example, during her time, one of Badgerow’s complaints was that the AFA’s who were hired before her were on salary while Badgerow and AFA’s who were hired around the same time were paid on a commission basis.  Additionally, Badgerow claimed that she experienced bullying from one of REJ’s Principals, who was not her direct supervisor. For example, Badgerow claimed that this Principal criticized and bullied her via Skype and text message about how she clocked in and out on her time card. She also stated  that the same Principal involved others in efforts to spread rumors that she was engaging in sexual conduct. Although Badgerow could not support many of her claims with specific examples, she did testify that Walters told her that the Principal involved in her bullying “did not want a female… as a financial advisor.”

Ultimately, Badgerow brought her concerns to Ameriprise’s Compliance Officer.  Badgerow told the Compliance Officer that she “was not sure if she was not treated fairly because she was not family or because she is a woman.” Thirteen days later, the Compliance Officer told Walters about the conversation he had had with Badgerow and advised Walters that he should consider consulting an attorney.  That same day, Walters terminated Badgerow’s employment.  According to  Walters,  he  fired  Badgerow  because  of  the  stress  of  dealing  with  constant  complaints about Badgerow from her coworkers.

Badgerow then sued REJ with the list of claims from above. REJ moved for summary judgment and the district court granted REJ’s motion.  Badgerow appealed.

On appeal, the court considered Badgerow’s Title VII retaliation claim, which is governed by the burden-shifting framework that is set in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under this framework, a plaintiff bears the initial burden to show:

1. that [she] engages in activity protected by Title VII,
2. That an adverse employment action occurred, and
3. that a causal link existed between the protected activity and the adverse action.

Under the burden shifting framework, if an adverse employment action, such as termination occurs within close temporal proximity to any protected activity known to the employer, then the plaintiff will have met her burden to establish a prima facie case of retaliation. Once the plaintiff has met their requirement, next, the burden shifts to the employer to provide a legitimate, nondiscriminatory reason for its action. If the employer is able to carry that burden, then the burden returns to the plaintiff to prove that the employer’s reason is pretext for the unlawful retaliation. Basically, a tennis match, where the burden goes back and forth like a tennis ball. Finally, a plaintiff must respond by offering evidence “that the adverse action would not have occurred but for [her] employer’s retaliatory motive”. See Feist v. La., Dep’t of Justice Office of the Att’y Gen., 730 F.3d 450, 454 (5th Cir. 2013).

To carry her burden, Badgerow used evidence from her supervisors, Walters. On appeal, Badgerow relied on the fact that (1) during her discussions with the Compliance Officer, she stated that, “She was not sure if she was not treated fairly because she was not family or because she is a woman,” (2) the Compliance Officer suggested that Walters hire an attorney, and (3) she was fired the same afternoon that the Compliance Officer spoke with Walters.

The appellate court found that Badgerow established a prima facie case of retaliation by showing that:

1. She told her compliance officer that she may be treated unfairly because she is a woman.
2. She was fired within hours of her Compliance Officer discussing the matters of claim Walters.

In response, REJ asserted that their reasoning for firing Badgerow was due to them receiving complaints from Badgerow’s coworkers about her behavior. The appellate court found this was sufficient to shift the burden back to Badgerow where she was required to offer evidence of pretext.  With the burden shifting back to Badgerow, she claimed that she was fired immediately after the Compliance Officer consulted with Walters.  The appellate court found that “the timing of Badgerow’s firing is highly indicative of motive.” In addition to Badgerow’s other evidence of pretext, the appellate court reversed the district court’s ruling, concluding that a reasonable fact finder could include that REJ’s reason for Badgerow’s termination could be pretext.

So, what does this mean for you and your company? If an employee makes a claim of potential harassment/discrimination/retaliation, take it seriously. Do not run directly to the employee’s direct supervisor. Instead, try to stop all major employment decisions (like termination), follow your process and procedures, perform an investigation, conduct interviews, and come to a conclusion.  Only then should you move forward with disciplinary actions.

About Harrison Oldham

Harrison grew up in Mansfield, Texas. He attended Texas A&M University for his bachelor’s degree, where he met his wonderful wife, Kelsey. After graduating magna cum laude from Texas A&M, he attended SMU Dedman School of Law, graduating with honors in 2012. Today, Harrison and his wife live in Dallas, Texas with their son, Teddy.

Since graduating from SMU Law, Harrison has worked exclusively in the field of business law. He has spent time in private practice and in-house, working with clients of every size; from single person startups to Fortune 250 companies. Today his practice focuses on serving the diverse needs of businesses and individuals throughout Texas. You can learn more about Harrison by visiting his website, at: http://lonestarbusinesslaw.com/.