As I read this summary judgment opinion last night, I fully expected the judge to send the plaintiff’s retaliation claim to trial.
But plot twist! He didn’t.
“I feel like you are racially discriminatory towards me.”
The plaintiff, a black man, worked daily with the defendant’s President and Owner. One day, the boss told the plaintiff he could not have his phone in the workplace. The plaintiff claimed he already had permission to use his cell phone to listen to music while working.
This didn’t sit well with the plaintiff. The next day, he confronted the president/owner and told him, “I feel like you are racially discriminatory towards me.”
This didn’t sit well, either. The boss yelled at the plaintiff and informed him that he was not racist. The plaintiff was then sent to the break room to wait for HR.
Soon, HR arrived in the break room. After the plaintiff expressed his concerns to her, he was told he was fired.
The opinion doesn’t say how much time elapsed between the complaint of discrimination and the termination, but it seemed like minutes.
So, he sued for retaliation.
But was there any retaliation?
To establish a claim of retaliation, a plaintiff must initially demonstrate that (1) he engaged in protected activity (like complaining about discrimination); (2) the employer took an adverse employment action against him; and (3) there was a causal connection between the two.
No one disputed the first two elements here. Under the third prong, the temporal proximity between the protected activity and the termination can be sufficient to establish a causal link. The court noted that the timing here was quite suspicious.
But here’s the thing.
The court located other evidence that the defendant’s General Manager decided to terminate the plaintiff two weeks earlier. And unless her powers of prophecy are off the charts — quit your day job — she could not have known that the plaintiff would engage in a protected activity. Therefore, there is no nexus between his complaint and termination.
Plus, even if the plaintiff could make a facial claim for retaliation, he faces the ultimate burden of showing that the defendant’s non-retaliatory reasons for terminating him are a mere pretext. In this case, the plaintiff was excessively late to work (nearly half of his tenure during his probationary period) and allegedly violated the cell phone policy. Plus, there was alleged insubordination during that final confrontation with the president/owner. And the plaintiff had nothing to refute these reasons for terminating him.
It takes some real guts to terminate an employee soon after complaining about discrimination. But, if you’re going to do it, ensure that the decision is pre-determined and documented. Even so, unless the discrimination complaint is clearly bogus, the company needs to take it seriously and may need to investigate since the alleged bad behavior could impact other employees too.