And here is a retaliation claim that may make it all the way to a jury to decide


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Earlier this week, I detailed several feeble retaliation claims that a federal court easily brushed aside.

Today, I’ll talk about another retaliation claim that almost suffered a similar fate until one of the most conservative federal appellate courts in the country breathed new life into it.

Let’s cue the music and talk about this recent Eleventh Circuit opinion. It’s about a plaintiff — aren’t they all — who claimed that her employer’s supposed reasons for ending her employment (insubordination and disloyalty, among other things) were a mere pretext for gender discrimination and retaliation.

The lower court granted summary judgment on both counts for the employer.  And the Eleventh Circuit affirmed the grant of summary judgment on the gender discrimination claim because reasons for termination cannot be proved to be a pretext for discrimination unless it is shown both that the reason was false, and that discrimination was the real reason. The Eleventh Circuit concluded that the plaintiff failed to sustain either burden. That is, she “failed to rebut the [employer’s] reasons [for firing her] head-on with evidence that they were false or that the decision to terminate her was made solely because of her gender.”

But the retaliation claim was different. That is, the plaintiff offered evidence that, only after she complained to the EEOC, did the employer put the wheels in motion to end her employment.

The City Manager learned of the plaintiff’s letter to the EEOC on March 16, 2015, and began drafting her termination letter around the same time. Within three days of learning of the EEOC letter, the City Manager had taken away one of her significant job duties and given it to another employee. Within 16 days, the city council stripped her of her job title and voted to replace her with the City Manager, and within a month, the City Manager fired her.

Put simply, the timing was suspect. The lower court struggled with it, ultimately entering summary judgment in the employer’s favor because the court felt that timing alone was not enough to create a jury question on retaliation.

But, the Eleventh Circuit went deeper. Not only did the employer terminate the plaintiff within about a month after she had complained to the EEOC, but there was plenty of evidence to suggest that the City Manager was looking for reasons to fire the plaintiff after she complained to the EEOC. Notably, all of the reasons for the plaintiff’s firing listed in her termination letter arose from conduct that occurred or was discovered after the City Manager learned that the plaintiff had complained to the EEOC.

Your takeaway.

This is another one of those “hire-slow-fire-fast” situations. Most employees aren’t stupid. Some, I dare say are opportunistic. I don’t know that the plaintiff was thinking about self-preservation when she filed with the EEOC; i.e., laying down a marker against which she could later allege retaliation. But, someone in your workplace may have that mindset.

So, when you have enough workplace issues to terminate an employee, do it. Otherwise, the longer you wait, the more likely it is that an intervening event, possibly a leave of absence for work-related stress, could give rise to a discrimination or retaliation claim.


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