In what has become an oft-used recipe in the EEOC cookbook of Title VII retaliation litigation, the government has once again utilized the strategy of taking an employer’s deposition and thereafter moving for summary judgment.

In EEOC v. Peters’ Bakery, No. 13-CV-04507, 2016 U.S. Dist. LEXIS 54379 (N.D. Cal. Apr. 21, 2016), a case we previously blogged about here, an employee filed an EEOC charge alleging race and national origin discrimination and retaliation against her employer, Peters’ Bakery (“the Bakery”). Thereafter, following the employee’s Internet postings accusing the Bakery’s owner, Charles Peters, of being racist, Mr. Peters filed a defamation charge against the employee, which subsequently led to the EEOC’s additional retaliation claim for subjecting her to that lawsuit. After deposing Mr. Peters, the EEOC moved for partial summary judgment. Judge Freeman of the U.S. District Court for the Northern District of California denied the EEOC’s motion for partial summary judgment, finding there was a disputed issue of material fact as to whether the employee’s filing of the EEOC charge was the but-for cause of Mr. Peters’ filing of the defamation action.

EEOC v. Peters’ Bakery illustrates how broadly the Commission views the concept of retaliation.

Employers facing retaliation claims should take account of this case when being deposed by the EEOC as, pursuant to its “recipe for retaliation claims,” the government will use any unfavorable deposition testimony as the “ingredients” in its likely forthcoming motion for summary judgment.

Case Background

The charging party, a Hispanic employee, had worked for the Bakery for several years. On September 27, 2011, the employee filed an EEOC charge against the Bakery alleging discrimination based on race and national origin and retaliation based upon protected activity. On November 3, 2011, the EEOC issued a Notice of Charge of Discrimination informing the employer of the charge asserted by the employee. After Mr. Peters’ girlfriend found Internet postings by the employee accusing him of being racist, on April 19, 2012, Mr. Peters filed a defamation action against the employee in the Small Claims Division of the Santa Clara County Superior Court, alleging defamation occurring on November 3, 2011 (the date of the EEOC Notice of Charge of Discrimination). Id. at *2.

On September 30, 2013, the EEOC filed its lawsuit against Peters’ Bakery, asserting two claims under Title VII against the Bakery based upon Mr. Peters’ conduct toward the employee. The first claim alleged that Mr. Peters harassed and discriminated against the employee on the basis of her race and national origin. The second claim alleged that the Bakery retaliated against the employee after she engaged in the protected activity of filing an EEOC charge by, among other things, subjecting her to the defamation action filed by Mr. Peters; refusing to pay her back wages and benefits following her reinstatement to employment pursuant to a labor arbitration; subjecting her to retaliatory discipline; and circulating a copy of her EEOC charge to her co-workers in an attempt to chill support for her. Id. at *2-3.

The EEOC moved for partial summary judgment with respect to the second claim, specifically, that Mr. Peters’ defamation action against the employee constituted unlawful retaliation for protected activity.

The Decision

Judge Freeman denied the EEOC’s motion for partial summary judgment regarding the retaliation claim. The Court noted that under the relevant provision of Title VII, 42 U.S.C. § 2000e-3(a), the elements of a prima facie retaliation claim are: “(1) the employee engaged in a protected activity, (2) she suffered an adverse employment action, and (3) there was a causal link between the protected activity and the adverse employment action.” Id. at *4-5 (quoting Davis v. Team Elec. Co., 520 F.3d 1080, 1093-94 (9th Cir. 2008)).

In regards to the first element, the Court noted it was undisputed that the employee filed an EEOC charge against her employer, which constituted protected activity. Id. at *5. Addressing the second element, Defendant argued that the filing of his defamation action in this particular case did not dissuade the employee from pursuing her charge and, in fact, three of her co-workers showed up at her defamation hearing to support her. The Court rejected this argument, noting the standard was objective and looks to whether a reasonable employee may be dissuaded from pursuing or supporting such charges. Id. at *5-6.

Thereafter, the Court reasoned that the EEOC’s motion turned on the third element — the causal link between the employer’s conduct and the protected activity. In order to establish this element, “a plaintiff making a retaliation claim under § 2000e-3(a) must establish that his or her protected activity was a but-for cause of the alleged adverse action by the employer.” Id. at *6-7 (quoting Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2534 (2013). The EEOC argued that the record evidence gave rise to only one inference, i.e., that Mr. Peters filed the defamation action against the employee because she filed an EEOC charge against the Bakery. The EEOC supported this contention by noting that Mr. Peters’ defamation complaint stated on its face that the defamation occurred on November 3, 2011, the date of the EEOC Notice of Charge of Discrimination.

In opposition to the motion, the Bakery asserted that the EEOC excluded critical testimony from Mr. Peters’ deposition excerpt, and that the excluded testimony gave rise to a reasonable inference that Mr. Peters filed the defamation action at least in part because of statements that the employee published on the Internet. Specifically, the EEOC excluded Mr. Peters’ testimony stating that after his girlfriend found the statements online, “I was very upset about being accused of being a racist on the [I]nternet. So I filed a defamation lawsuit in small claims court.” Id. at *8-9. The EEOC objected to Mr. Peters’ deposition and declaration statements regarding his girlfriend’s discovery of the statements, asserting that the challenged statements constituted inadmissible hearsay under Federal Rule of Evidence 802 and were conclusory. The Court rejected this argument, finding that they were not presented for the truth of the matter asserted and that the employee actually published the claimed statements to the Internet, which were personally viewed by Mr. Peters after his girlfriend discovered the statements.

As to the merits, the EEOC argued in reply to the Bakery’s opposition that the only reasonable inference to be drawn from Mr. Peters’ deposition testimony is that he filed the defamation action against the employee because she filed an EEOC charge against the Bakery. To support this argument, the EEOC cited an affidavit submitted by Mr. Peters’ which asserted “She made allegations that weren’t true in the EEOC charge,” and deposition testimony where Peters conceded that the employee never posted derogatory comments about the Bakery. Id. at *11-12. Rejecting this contention, the Court found that while the EEOC’s evidence was “quite strong,” it was insufficient to establish as a matter of law that the employee’s filing of the EEOC charge was the but-for cause of Peters’ filing of the defamation action against her. Id. at *13. Further, the Court found that “the testimony in question states only that [the employee] never posted a bad comment about the Bakery. That statement does not actually conflict with Mr. Peters’ assertion that he believed [she] had posted negative comments on the Internet about him.” Id. at *14. Accordingly, the Court denied the EEOC’s motion for partial summary judgment, finding there was a disputed issue of material fact as to whether the employee’s filing of the EEOC charge was the but-for cause of Mr. Peters’ filing of the defamation action. Id. at *14-15.

Implication For Employers

Employers must be aware of this consistently utilized EEOC “recipe for retaliation claims”, where the government takes an employer’s deposition testimony and thereafter bakes it into a motion for summary judgment. Accordingly, employers must be careful in how they approach these depositions so as to not give the EEOC the ingredients it needs to cook-up a successful summary judgment motion. Further, when employers have non-retaliatory reasons for actions taken against employees who previously brought EEOC charges, it is crucial that they not only get this testimony into the record on deposition, but also highlight this information when responding to the EEOC’s likely forthcoming summary judgment motion, as the government will almost certainly neglect to use any employer-friendly ingredients in its summary judgment recipe for retaliation claims.