9th Circuit Finds Supervisor Not Liable For Retaliation Against Whistleblower
By Cindy Caplan
In Lakeside-Scott v. Multnomah County, the Ninth Circuit held that an employer's independent, legitimate decision to terminate an employee insulates a lower-level supervisor from liability despite the supervisor's retaliatory motive.
The Plaintiff, Lea Lakeside-Scott ("Scott"), filed a formal complaint alleging, among other things, that her supervisor Jann Brown ("Brown") gave preferential treatment to gays and lesbians in hiring and promotions. During a review of another County employee's email as part of an investigation into the employee's alleged misconduct, Brown (and other employees participating in the investigation) discovered Scott's journal, which contained discriminatory comments and excerpts of other employees' work documents. Joanne Fuller, the Department Director, placed Scott on administrative leave and imitated an investigation into Scott's possible violation of County policies. Brown's role in the investigation was limited to answering the investigator's questions.
Scott was eventually terminated and sued the County and Brown, alleging retaliation under Oregon's Whistleblower Act and 42 U.S.C. § 1983. The jury found in Scott's favor with respect to her claims against Brown. On appeal, the Ninth Circuit found that despite her retaliatory motive, Brown could not be held personally liable for retaliation based on her limited involvement in the chain of events that ultimately led to Scott's termination. In reaching this conclusion, the Court noted that there was no evidence that Brown influenced Fuller's termination decision. The Court noted that although it is important to prevent retaliation in the workplace, employees who engage in constitutionally protected conduct are not granted a "get out of jail free card" shielding them from legitimate discipline and/or termination.
Unlike the Oregon statute at issue in this case, California supervisors cannot be held individually liable for retaliation under Fair Employment and Housing Act. Nonetheless, as this case illustrates, it important that an employer's investigation into employee misconduct is conducted by an independent and neutral investigator. An employer that terminates an employee with previous "whistleblower" complaints may still be found liable for retaliation where there is evidence that the decision was based on a retaliatory motive. Accordingly, employers are cautioned to consult with legal counsel before terminating an employee who has engaged in protected activity.