If I ever handled a plaintiff’s case again, at deposition, I would be sure to take a page out of the playbook of Texas employment lawyer, Mike Maslanka:
Ask the manager who decided to fire the plaintiff whether he’s eligible for re-hire. An unprepared manager might blurt out, “Of course not; he’s suing us.” Say hello to a retaliation claim.
I thought of Mike as I read this recent Texas Court of Appeals case about an employer that admitted at trial that, its receipt of EEOC right to sue letters “prompted” it to place the following notes on the Charging Parties’ personnel files:
“Please note he is not eligible for rehire ever. Tried to sue us. Simply tell him, ‘sorry but we have nothing for you at this time. Please try again. Have a nice day.’ Not for rehire. Per Ben G.”
Folks, that’s stupider than the time in high school that a combustible combination of curiosity and boredom led me to disregard the warning on the container of Icy Hot balm, about where not to rub the balm.
The notes in the personnel files was enough for the appellate court to uphold the jury finding of both retaliation and malice.
Remember, that anti-retaliation laws apply not only to current employees, but also former ones too. And if there’s anything a jury hates more than straight-up discrimination, it’s retaliation, which happens to be the most popular claim filed with the EEOC.