Drama following a bra-less woman’s meeting with the CEO supports her retaliation claim

Nope, no clickbait here. And no irony in the lede either.

Plus, I feel like I’ve seen this one before.

But, before we get to that…

MCO to PHL. 🛩We landed. Good night, kids. 💤💤💤 #americanairlines cc @americanair

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He asked if he could wait in front of the lobby fireplace at @doubletree while we loaded the car 💤💤💤

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Disney World wore these kids out! For more photos from our trip, head over to my Instagram (@eric_b_meyer).

Life imitates art (sort of).

For our purposes, the important facts of Baez v. Anne Fontaine USA, Inc. (opinion here) , involve a meeting between the plaintiff and the CEO in which she definitely wore no bra and supposedly wore a revealing shirt, thus, maybe, revealing her breasts.

The aforementioned meeting generated some talk in the office amongst other female co-workers. The plaintiff then complained about this office chatter and, eventually, the plaintiff was fired with that “drama” cited as one of the reasons for the plaintiff’s eventual termination.

So, she sued her former employer, claiming retaliation, among other claims.

An employee complains about workplace gossip, and she gets fired for her “drama”?!?

Come on, man!

Let’s consider the elements of a retaliation claim under Title VII of the Civil Rights Act of 1964:

Employee complains about discrimination (e.g., threatens to sue)

Employee faces some adverse employment action (e.g., she gets fired)

Step two occurs because of step one.

Here, the plaintiff complained to a management about how others had openly discussed plaintiff’s supposedly provocative attire. While acknowledging it to be a “close” issue, a NY federal court thought there was enough there to satisfy step 1.

Step 2 is easy: the employee was fired.

As for step 3, the company cited performance reasons for termination the plaintiff, which left her the task of demonstrating “pretext” to overcome the employer’s summary judgment motion and get to trial. And, according to the court, the plaintiff did just enough to create a jury question:

Here, the fact that Zlotkin listed the “drama” associated with plaintiff as one of the reasons for her termination, combined with the close temporal proximity between Baez’s complaints about the rumor and her termination, is sufficient to create a genuine dispute of material fact as to whether Baez’s complaint was a but-for cause of her termination. Defendants’ argument that Baez does not know whether Zlotkin was referring to the specific rumor about Baez showing her breasts when he mentioned “too much drama” is disputed by plaintiff (and, in any event, is a reasonable inference a juror could draw) and therefore does not eliminate any genuine dispute of material fact.

When you fire someone, give specific reasons.

I get it. You’re ending someone’s employment with your company and it’s not easy to deliver that news. So, how do many people do it?

  • “I’m sorry, but it’s just not working out.”
  • “You’re not just not the right fit anymore.”
  • “This was a business decision.”

These are all tied for dead last on the list ways to communicate a termination. Like Seinfeld, it’s a show about nothing.

Instead, get specific. That doesn’t mean, “We’re ending your employment with us because you are a terrible employee. And, you are a terrible employee because a, b, c, d, e, f, g, …. qqq, sss…” However,

  • Do have business reason to end someone’s employment;
  • Document the reason(s); and
  • If there is one reason, share it; or
  • If there are many reasons, share some (“We’re ending your employment. Among other reasons why, …”)
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