Court: In-house lawyer isn't protected by Title VII

By Pat Murphy
The Daily Record Newswire
BOSTON — Rebecca Weeks lost her job as in-house counsel for the Kansas State Fire Marshal after raising alarms about unlawful discrimination in the fire marshal’s office.

At first blush, you might say that Weeks had a viable claim for Title VII retaliation. Not so, says the 10th Circuit.

According to the court, Weeks hadn’t engaged in protected opposition to Title VII discrimination because she never stepped outside her role as in-house counsel for the state agency.
Weeks became general counsel for the fire marshal’s office in 2004. Three years later, Dan McLaughlin was appointed state fire marshal, becoming Weeks’ boss. McLaughlin fired Weeks in April 2009. There are two conflicting stories as to why Weeks lost her job.

As Weeks tells it, the beginning of the end was when two employees in the office came to her complaining of pregnancy discrimination and a hostile work environment.
Weeks claims that she got on McLaughlin’s bad side when she advised him to take the allegations of discrimination seriously.

When Weeks subsequently sued the state fire marshal in September 2009, she alleged that McLaughlin fired her because of her advice and that his action constituted retaliation in violation of Title VII.

On the other hand, McLaughlin claims that Weeks lost her job because she was a slacker, to put it bluntly.

According to the state fire marshal, Weeks regularly devoted as many as five hours of the work day to her personal affairs. To make the point that Weeks wasn’t a particularly hard worker, McLaughlin alleged that, when he asked Weeks to produce a piece of draft legislation in 2007, she didn’t finish the project until September 2008.

Putting aside the factual disputes in the case, the 10th Circuit decided last Thursday that Weeks didn’t have a claim of Title VII retaliation, regardless of McLaughlin’s motivations. The court’s decision affirmed a summary judgment in favor of the state fire marshal.

Standing squarely in the way of Weeks’ lawsuit was 10th Circuit precedent.

In a 1996 case, McKenzie v. Renberg’s Inc., the court held that, for an in-house lawyer to engage in protected opposition, she must do more than provide legal advice to her employer on how best to resolve a claim of discrimination asserted by another employee.

Under McKenzie, the lawyer must instead “step outside … her role of representing the company and either file (or threaten to file) an action adverse to the employer, actively assist other employees in asserting [Title VII] rights, or otherwise engage in activities that reasonably could be perceived as directed towards the assertion of rights protected by [Title VII].”

As it turns out, Weeks had placed her case squarely in the crosshairs of the McKenzie rule by stipulating in the district court that, when she rendered the advice she was allegedly fired for offering, she was acting within the scope of her duties as the state agency’s general counsel.

“That stipulation — that acknowledgment that she was at all relevant times acting within her role as counsel for the agency and simply seeking to assist it in fulfilling its legal obligations — was enough to doom her case under McKenzie’s rule,” wrote Circuit Judge Neil M. Gorsuch in Weeks v. Kansas.

The judge admitted that the continued viability of McKenzie is debatable in light of subsequent decisions by the Supreme Court.

“A few years ago, and well after McKenzie, the Supreme Court suggested that all one has to do to oppose an unlawful employment practice in Title VII cases is to ‘antagonize … ; contend against; … confront; resist; [or] withstand,’” Gorsuch observed. “Whether and how this general standard meshes with McKenzie’s preexisting and more particular rule for retaliation claims by in-house attorneys is not clear.”

Alas, Weeks failed to challenge the continued viability of McKenzie in the district court, thus waiving the argument for her appeal. So the 10th Circuit will have to wait for another case before deciding whether McKenzie remains good law.