Retaliation Claim Fails to Overcome Employer’s No-Recording Policy

Takeaway: HR professionals must enforce company policies consistently while ensuring they align with federal laws, such as the National Labor Relations Act (NLRA), and state laws, such as the Colorado Anti-Discrimination Act (CADA). Employees who record conversations may, in some instances, be engaging in protected activity under the NLRA.

An employer did not retaliate against an employee for making reasonable requests for lactation accommodations when the employee was fired after violating the employer’s no-recording policy, the 10th U.S. Circuit Court of Appeals has ruled.

In the spring of 2019, the plaintiff took leave under the Family and Medical Leave Act for the birth of her child. Upon her return to work in July 2019, she requested accommodations to pump breast milk while at work. Although she was initially permitted to use a company wellness room to pump breast milk on company time, this room became unavailable due to construction.

The employer provided the plaintiff with several other location options for lactation breaks, including a bathroom and then a locker room, which was accessible by a man’s key. The options were unsatisfactory, and the plaintiff contacted a supervisor, seeking alternative lactation accommodations under Colorado and federal law. Ultimately, the plaintiff was able to use the newly renovated wellness room, which doubled as a break room.

On Aug. 22, 2019, the plaintiff’s employer changed its policy on lactation breaks and required her to clock out before taking a break. This change was significant to the plaintiff, as her lactation breaks lasted on average two hours per day, and in some instances longer, in addition to her lunch and other rest breaks.

The plaintiff met with a supervisor to discuss this policy change and secretly recorded the conversation. Her employer later discovered what she had done and terminated her employment for violating the employer’s policy prohibiting the surreptitious recording of meetings.

The plaintiff sued her employer for pregnancy and gender discrimination, failure to accommodate lactation breaks, retaliation under CADA, and termination of employment in violation of public policy. The district court granted summary judgment in favor of the employer on all counts. The plaintiff appealed the district court’s decision with respect to the retaliation claim, arguing that the district court erred in finding that CADA did not require lactation breaks.

The 10th Circuit first noted that the McDonnell-Douglas burden-shifting framework for claims under Title VII of the Civil Rights Act of 1964 also applied to CADA claims. The 10th Circuit noted that, while CADA provides for many forms of workplace accommodation, it was unclear whether CADA required employers to provide lactation breaks and that the Colorado Supreme Court had not ruled on this issue.

However, the 10th Circuit declined to address this issue or to certify the issue to the Colorado Supreme Court. Instead, the court stated that, even if the plaintiff established a prima-facie case of retaliation under CADA, the employer’s rationale—the plaintiff’s surreptitious recording of a meeting with her supervisor—was a valid, nondiscriminatory basis for termination.

The 10th Circuit also rejected the plaintiff’s arguments that her employer’s reason for terminating her employment was pretextual.

First, the plaintiff claimed that her employer maintained a policy against firing employees for their first offense of recording a co-worker. The court found this claim unsupported and noted that an affidavit from the plaintiff’s former supervisor demonstrated that the plaintiff was previously and specifically coached not to record co-workers.

The court also rejected the plaintiff’s assertion that the employer’s basis for termination was insincere, which she based on the fact that another employee who violated the policy was not fired. Instead, the 10th Circuit agreed with the district court’s assessment that the other employee was not similarly situated because the recording was not of a private conversation and the other employee had not been previously coached on the no-recording policy.

Finally, the 10th Circuit dismissed the plaintiff’s argument that there was no formal no-recording policy, instead finding that the employer maintained such a policy, internally distributed to HR executives, and that the policy had been enforced against other employees.

Based on these findings, the 10th Circuit found no evidence that the employer’s basis for terminating the plaintiff’s employment was pretextual, and it affirmed summary judgment in favor of the employer.

Spagnolia v. Charter Communications, 10th Cir., No. 23-1190 (July 2, 2024).

Linda B. Hollinshead is an attorney with Duane Morris in Philadelphia.