Last week, my
post was about retaliation, and how employers can be liable and how they
can defend themselves. As luck would have it, two recent court decisions
illustrate beyond my wildest imagination how important this issue can be.
Five years between protected activity and
adverse action? No problem! I said last week that most
courts find that a six-month or more time lapse between the protected activity
and the adverse employment action generally raises a presumption that the
employer did not retaliate against the employee.
They key word here is "presumption." As in,
In a decision
handed down by the U.S. Court of Appeals for the First Circuit last week [an enhanced version of this opinion is available to lexis.com subscribers],
the court affirmed a $2MM verdict for a Puerto Rican physician whose contract
was terminated five years after his protected activity. The doctor had
sued the defendants for age discrimination in 1998. As those of you who have
defended lawsuits know, the wheels of justice sometimes turn at an excruciating
pace. In this doctor's case, his lawsuit was still going on as of 2004, and he
had been deposed just the day before his termination. He alleged that he was
terminated because of his 1998 lawsuit, and because of the deposition.
OK, excuse the legalese, but we certainly have
"temporal proximity" as far as the 2004 deposition is concerned,
don't we? Only problem is, the court found that the decision to terminate had
already been made before the deposition and had been pre-planned for the day on
which it occurred only because the firer had an intervening vacation. As
I said last week, if you can prove you made the decision before the
protected activity occurred, you usually have a good defense to a retaliation
So the First Circuit found in the employer's favor on
But the court found that there was enough evidence for a
jury to find retaliation based on the initial filing of the lawsuit in 1998
because of "a mosaic" of conduct that had occurred in the interim:
*One person allegedly said to the doctor
before his 1998 lawsuit was filed that he would never work again for the
hospital or anywhere else in Puerto Rico if he filed a lawsuit.
According to the plaintiff, this statement was made by one of the people who
decided to terminate him. The defendants said it was someone else. The jury
obviously believed the doctor.
*The employer's grounds for terminating the
doctor's contract in 2004 looked a little fishy. To
make a long story slightly less long, the doctor had wanted to install some
equipment in his office that would allow him to perform procedures that the
hospital also performed. The hospital told him that he could do it as long as
his office was at a certain location. The doctor moved to the specified location,
installed the equipment, and began performing the procedure in his office and
collecting the fees, which caused the hospital to lose a significant amount of
revenue. This was the stated reason for the termination. Because the hospital
had previously told the doctor that it was ok for him to perform the procedure
as long as he did it in the location to which he relocated, the court found
that it was reasonable for the jury to infer that this was a bogus reason for
termination. Although "bogus" doesn't necessarily equate to
"unlawful," the jury is entitled to find that a bogus reason is what
we call a "pretext" ("ruse") for an unlawful reason.
*The doctor also said that he had an
exemplary record. (Of course he did!) Generally, an
employee's opinion about his own performance is not enough to establish that he
was meeting the employer's expectations, but apparently the defendants in this
case had no evidence to the contrary.
Interestingly, the court did not appear to base its
decision on the fact that the 1998 lawsuit was still pending at the time the
termination decision was made. If I had been on the panel, and if I had been
inclined to find for the doctor (I'm not sure I would have, but anyway), I
probably would have included this as a factor in the decision.
The court admitted that the case was a "close
call." No kidding. Whether you agree with it or not, there it is. So the
doctor gets to keep his $2MM.
"Go sell crazy someplace else. We're all
stocked up here." In a truly bizarre interesting
case from California, a
federal judge issued a preliminary injunction, barring* a company from
terminating a contract with its customer in alleged retaliation for a wage and
hour class action filed by the company's employees.
*I exaggerate a bit. The judge said that the
company could terminate its contract if it offered suitable alternate
employment to the employees. It appears that the judge did this to avoid
issuing a "mandatory injunction" (an injunction that requires you to
take an action rather than refrain from taking action), which is usually a
Generally, a business closing, layoff, reduction in
force, or job elimination is a legitimate, non-retaliatory reason for
terminating an employee. The reasoning goes like this: No matter how angry this
employer might have been at Joe for filing that EEOC charge, it is very
doubtful that the employer would be vindictive (or self-defeating) enough to close
the entire plant over it.
Of course, that rationale may not apply where the charge
or lawsuit is a "class" proceeding involving all, or nearly all, of
And, in this case, the judge cited plenty of evidence
that the company had a retaliatory motive.
So, kiddies, the moral of the story is to be very,
very careful about actually or even giving the appearance of retaliating
against your employees. If you have an employee who has filed a charge or
lawsuit against you, or who has engaged in other protected activity (which can
include informal, internal complaints), make sure you get some good legal
advice before you act.
A couple of clarifications.
Having looked back at what I said in last week's post, I'd like to clarify a
couple of points:
1) CAUTION: LEGALESE ALERT. The standard that I
used for establishing a retaliation claim (protected activity, adverse action,
and causal connection) is the standard that applies under the federal
anti-discrimination laws, which have been adopted in a number of other
But I should have mentioned that the standard is different
for retaliation claims under the Sarbanes-Oxley Act and other statutes enforced
by the Occupational Safety and Health Administration. For those claims, the
employee must show by a preponderance of the evidence that the protected
activity was a "contributing factor" in the adverse action. If the
employee does this, he or she wins unless the employer can provide "clear
and convincing evidence" that it would have taken the same action even in
the absence of the protected activity. This "OSHA" standard (which is
generally considered tougher for the employer) has also been adopted in a
number of other contexts, as well, so check your jurisdiction. END OF
LEGALESE. HAVE A NICE DAY.
2) I also should have mentioned that an employer can be
liable for retaliation that occurs after the employment relationship has
ended. For example, if a terminated employee files an EEOC charge and
because of that the employer contests the ex-employee's claim for
unemployment or gives the ex-employee a bad reference, the ex-employee can have
a retaliation claim against the ex-employer.
Visit the Employment and
Labor Law Insider for additional insights from Robin Shea, a partner with the national labor and
employment law firm Constangy, Brooks & Smith, LLP.
For more information about LexisNexis products
and solutions connect with us through our corporate site.