He got fired after threatening to complain to HR. Could that be retaliation?


The plaintiff in this federal court decision I read last night didn’t exactly come off as a model employee.

According to the decision, others reported that the plaintiff, a security officer and transportation driver, took extended lunch breaks, made unauthorized stops while making product deliveries (including a car dealership to purchase a car), watched porn in a company car, drank alcohol while riding as a passenger and in the workplace, and smoked marijuana in a company vehicle while making deliveries.

Those extended lunches seem relatively trivial, don’t they?

Well, yadda, yadda, yadda, the company fired the plaintiff, who then sued his former employer in federal court.

One of those claims was for retaliation.

To state a claim for retaliation under the burden-shifting method, a plaintiff must demonstrate that: (1) he engaged in statutorily protected activity; (2) he suffered a materially adverse action; and (3) there is a but-for causal connection between the two events. Although the plaintiff claimed that the defendant retaliated against him multiple times, the court made quick work of his claim he couldn’t satisfy the first element of the test.

Laws like Title VII of the Civil Rights Act of 1964 protect complaints of discrimination only if when based on a protected characteristic like race. Merely complaining in general terms of discrimination or harassment without indicating a connection to a protected class or providing facts sufficient to create that inference is insufficient. Here, the court found no evidence of the plaintiff complaining about racial discrimination.

In response, the plaintiff stated that he was terminated “based off retaliation due to me threatening to go to HR on several occasions…” However, mere conversations about going to HR to complain are not tantamount to actually complaining to HR about race discrimination and are therefore not statutorily protected activities.

Defendant wins.

Although not explicitly addressed in the decision, cases like these are a good reminder that employers can protect themselves against underlying claims of discrimination by exercising reasonable care to prevent and promptly correct the bad behavior. A harassment policy coupled with training helps demonstrates reasonable care.

With these preventative steps in place, the defendant will prevail in many discrimination lawsuits when the plaintiff employee unreasonably fails to take advantage of these measures to complain about the discrimination. And when the employee does complain, the employer should follow its policies and procedures to address the complaint by investigating and taking steps that are otherwise designed to end the complained-of behavior.

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