How many of you would risk the retaliation claim here? (I would)

You’ve been here before.

One of your employees just complained about discrimination in the workplace. Or maybe s/he just participated in an HR investigation. A few days or weeks later, s/he violates your work rules and you have clear grounds to fire the employee.

Now you have a conundrum. Do you fire the employee and risk the retaliation claim? Or do you give the employee a pass?

Let’s see how this plays out in court.

Recently, the Third Circuit Court of Appeals dealt with a similar set of fact in this opinion. It actually involves two plaintiffs. One claimed that the defendant-employer violated the New Jersey Law Against Discrimination when it fired him for participating in a workplace investigation. The other, who frequently took approved leave under the Family and Medical Leave Act, claimed that the defendant retaliated against him by firing him for taking FMLA and for participating in the same workplace investigation as the other plaintiff.

Both plaintiffs claimed that time was on their side. That is, the terminations were so soon after the investigation in which they participated, that their participation just had to motivate the company’s decision to fire them; i.e., retaliation.

The company claimed that it fired both employees for violating its workplace violence policy. In support, the company offered these facts:

  • Plaintiffs were subject to the company’s employee handbook, which included a code of conduct that prohibited “workplace violence.” This included “gestures and expressions that communicate a direct or indirect threat of harm,” as well as “oral and written statements.”
  • The company also held a workplace violence prevention meeting, which both plaintiffs attended. At this meeting, the company addressed previous violations and reset its expectations: “Regardless of how corrective action has previously been addressed at this center for threats or other workplace violence incidents, going forward any team member who is found to have engaged in such serious prohibited behavior will be subject to termination of employment.”
  • After learning of separate allegations of workplace violence involving the plaintiffs, the company investigated and, applying its workplace violence policy, terminated their employment.

So, what does a court do in this situation?

Well, let’s check it out:

In “certain narrow circumstances,” proximity in time can be “unusually suggestive” and sufficient on its own to prove causation. Generally, however, courts consider the broader context surrounding the termination, including ongoing antagonism toward the employee and inconsistent reasons given for the termination. Nothing here suggests that [the defendant] fired [Plaintiff No. 1] to retaliate for participating in the investigation. He has presented no evidence of animus toward the participants in the investigation, for of the 11 employees interviewed by [the investigator], 10 are still employed with [the company]. Instead, he appears to have been fired for his actual role in the breakroom incident.

[Plaintiff No. 2’s] termination is even further removed from the breakroom investigation. [The defendant] fired him two months after he participated in the investigation, which is too long to suggest a causal relationship on its own.

The same logic applies to any timing argument that Plaintiff No. 2 may have that the company fired him soon after taking FMLA leave. Indeed, the court noted that he “consistently used FMLA leave for two years without issue. Each time he called out sick, his supervisors covered his shifts, and each year that he applied for recertification, [the defendant] approved. It also actively accommodated FMLA leave for 42 employees between May 2013 and May 2017 at [the same] service center.”


I can understand that some of you are naturally risk-averse in situations like this one. But, if you follow your work rules consistently, you should end up ok in the end. Additionally, if the litigation risk motivates you to create exceptions in certain situations, what you may end up doing is setting up a future discrimination claim from another employee who does not receive a pass for engaging in the same behavior.

“Doing What’s Right – Not Just What’s Legal”
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