Jottings By An Employer's Lawyer

Thursday, July 13, 2006

First Burlington Northern v. White Reversal

The 6th Circuit becomes the first appellate court I am aware of to cite the recent Supreme Court decision in Burlington Northern v. White in reversing a summary judgment in a retaliation case on the element of "adverse, retaliatory action." Randolph v. Ohio Department of Youth Services(6th Cir. 7/13/06)[pdf].

Here the complaining employee was first suspended, then terminated, but later reinstated with 70% backpay. The district court had held this did not rise to the level of an actionable adverse action.

It is fitting that the 6th Circuit got to be the first to use Burlington Northern since it was the court from which the case came. Still today's decision is not that big a deal, since the 6th Circuit in its own Burlington Northern opinion had held that termination, with later reinstatement at 100% backpay was an actionable adverse action. Thus the Supreme Court decision did not alter the result. The more important first use of Burlington Northern will be the case where the ultimate outcome is changed by the Supreme Court's action -- that decision is forthcoming -- stay tuned.


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