The 10th Circuit Court of Appeals, in Robinson v. Cavalry Portfolio Services reversed a jury verdict for Plaintiff, and ordered the lower court to grant Defendant's motion for a directed verdict on, among other things, that she was retaliated against for her opposition to a Title VII violation.
Robinson was a participant in a racially-charged conversation with a co-worker named Torres. She is white and her husband is black, and the conversation covered why she dated black men, why she didn't date white men, and included the N-word. Robinson's co-worker, and not Robinson, reported the incident. Defendant interviewed Robinson about the incident. Plaintiff said she felt the conversation was inappropriate, that she was offended by his language, and that his comments were racist. Two days later the offensive employee was terminated for excessive tardiness. Robinson claims she was discriminated against because she complained about Torres's comments.
The Court felt the conduct in question had not risen to the level required in order to sustain a retaliation claim. (The Court did correctly note that, according to Crawford v. Metro Gov't of Nashville, it was of no consequence that Robinson did not actually report the conduct.) In fact, according to the Court, Robinson's conduct was not "opposition" because "[n]o reasonable person could have believed that the single Torres incident violated Title VII's standard," and, as such, Robinson "misperceive[d] what constitutes an unlawful 'employment practice.'" (The Court likely would have held that Robinson suffered no adverse employment action given its discussion in connection with her racial discrimination claims.)
Robinson v. Calvary reaffirms an anomaly. Specifically, employees are not protected from retaliation when employees oppose practices that have not risen to the level of unlawful practices.
Click here for a copy of the Court's opinion.
Click here for a copy of Crawford.
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