Favorite Firing: Too Soon and Too Late—Two Examples of Potential Retaliation


MP900302921Retaliation charges now make up the most common type of discrimination charges filed with the Equal Employment Opportunity Commission, and the number of retaliation charges grew at 5% in fiscal year 2015. The situation is no better with complaints filed with civil rights agencies at the state and local levels.

Two recent cases illustrate the problems employers face managing employees who might file a retaliation claim. Adverse actions against an employee at any time after the charge is filed—whether too soon or too late—can both land an employer in hot water.

Baker v. KCI Technologies, Inc., (S.D. Ind., January 27, 2016):

The Facts: In the first case I’m profiling, a female employee, Alaina Baker, worked as an Environmental Scientist for KCI Technologies. After she complained internally about compensation, recognition, and promotional issues, Ms. Baker filed a charge of sex discrimination with the Indiana Civil Rights Commission. The company then investigated whether her concerns could be resolved to enable her to work as an effective manager. During the investigation, Ms. Baker told the Vice-President of Human Resources that she was not comfortable in her current situation and did not want to remain with KCI Technologies if nothing was going to change.

The company offered Ms. Baker the choice of a mentor or a severance package. Ms. Baker indicated that she didn’t think a mentor would help. Her employer then offered her another severance package, but she rejected that offer as well. KCI Technologies fired Ms. Baker, even though she had no record of job performance or disciplinary issues, because the company decided her antagonistic relationship with her supervisor would probably harm the business’s relationships with its customers. Ms. Baker then filed a claim for retaliatory discharge.

The employer filed a motion for summary judgment, which the District Court denied. The Court found that “a causal connection might very well exist between the filing of Ms. Baker’s discrimination complaint and her termination a mere three months later.” It should be noted that this decision was not a determination on the merits, and it is possible the employer will ultimately prevail, but the facts were sufficient to withstand a motion for summary judgment.

The Moral: It appears that KCI Technologies acted too soon. The company might have been better served to see how Ms. Baker performed over time. She might have caused problems with customers (their fear), but she might not have. By acting as precipitously as it did, the employer opened itself up to increased risk in the litigation.

Of course, every employer will have to weigh for itself whether acting to avoid harm in the workplace is more or less costly than the cost of litigation.

Johnson v. Lemonds, (M.D.N.C., February 4, 2016):

The Facts: In the second case, Paula Johnson had filed claims of age, disability, and genetic information discrimination against her former employer, Earth Angels, which was owned by Sandra Lemonds. Ms. Johnson had worked as a home health worker for Earth Angels.

Many months later, but while these claims of discrimination were still pending, Ms. Lemonds contacted Ms. Johnson’s subsequent employer, Kesler Home Care Services. She also visited the home of the new client for whom Ms. Johnson provided care. Ms. Johnson alleged that Ms. Lemonds’s contacts were retaliatory in nature, and that they caused the client to fire her—which led Kesler to fire her, and Kesler also fired her fiance and daughter who also worked for Kesler.

Defendant Lemonds filed a motion to dismiss based on insufficiency of the facts stated in the complaint. The federal magistrate overruled the motion. Based on what Ms. Johnson had alleged, the magistrate found that she had adequately stated a possibility that the underlying complaints of discrimination had caused the calls and visits to Ms. Johnson’s new employer and her later termination by Kesler.

Although a long delay between protected activity and adverse action tends to negate the inference of discrimination, the Court did not find that to be true in this case. The fact that seven months had passed since Ms. Johnson had filed her original complaints did not preclude a finding of retaliation. In fact, Ms. Johnson alleged that Ms. Lemonds took the earliest opportunity she could to retaliate.

Once again, the defendant has not lost everything, because this ruling was on a motion to dismiss, not on the merits. But the defendant faces a lengthy lawsuit.

The Moral: In this case, the defendant’s delay in acting for several months post-filing of the discrimination complaint was insufficient to rebut a retaliation claim. Waiting lengthy periods may negate an inference of discrimination, but it will not overcome it as a matter of law.

Putting it all together:

Defendants face a tricky situation in managing an employee once a claim of discrimination is filed. Any subsequent adverse action—regardless of the timing—increases the risk of a retaliation claim.

An employer is best served by demonstrating extreme patience in documenting an employee’s performance issues, by insuring that there are comparable employees treated the same as the plaintiff, and by providing the employee with multiple opportunities to improve (unless the situation poses a danger to the employee or others).

How have you managed your way through possible retaliation claims?

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