The guy who may have solicited prostitutes at work could win his retaliation lawsuit too


A recent decision from the Third Circuit Court of Appeals addresses the extent to which an employer may lawfully dig up reasons to terminate a current employee who has already sued for discrimination.

The plaintiff initially filed a lawsuit against his employer alleging race discrimination, retaliation, and a race-based hostile work environment, the Americans with Disabilities Act, and the Family and Medical Leave Act. Subsequently, the defendant terminated the plaintiff’s employment.

Most employers fear taking such a risk-aggressive step, as it practically guarantees a retaliation claim. But here’s what happened.

While the plaintiff was on vacation, the company cut the padlock off his work locker and searched it. The company claimed that several lockers needed to be moved and emptied because they were blocking surveillance cameras.

The defendant found a cell phone when removing the contents of the plaintiff’s locker. Defendant’s HR Director later testified that she thought the company may have issued the cell phone to the plaintiff, but she couldn’t be sure.

The phone was password-protected. But, the HR Director guessed the password on one try.

Compliance and phone hacking — what more could you ask for from your HR Director?

In her review of the text messages, the HR Director found messages from more than a year earlier in which the plaintiff appeared to have solicited sex from prostitutes. Comparing the time records of his text messages to his work hours, these solicitations seemingly occurred at work. And yet, while the company didn’t have a specific “no texting prostitutes at work” policy, the defendant nonetheless concluded that soliciting prostitutes during company time violated the company’s policy. So, they immediately fired the plaintiff.

Sure enough, the plaintiff claimed retaliation. The company defended that it had legitimate, non-discriminatory reason to fire him.

The Third Circuit sided with the plaintiff:

A jury [could] conclude that [the defendant’s] stated reason for firing [the plaintiff] was a pretext intended to thwart any suggestion of illegal retaliation. The evidence here clearly supports a conclusion that [the defendant] was looking for something that would justify terminating [the plaintiff] and that it undertook that search because of [the plaintiff]’s complaints of discrimination…we will not adopt a rule that would countenance limited retaliatory searches and only subject an employer to Title VII liability for more sweeping incursions. (cleaned up)

In this case, there were several indications that the prior lawsuit motivated the search.

  1. Company policy allowed searches of employee property based on reasonable suspicion of employee misconduct at work. The company did not suspect wrongdoing when it cut the padlock off and accessed the plaintiff’s phone.
  2. Rather than check the cell phone against a master company list to determine whether it was a company-issued phone, a far less intrusive way to validate, they accessed the phone directly. And then it reviewed a year’s worth of his text messages.
  3. Allegedly, one of the company owners had earlier approached the plaintiff and said, “I’ll [ ] just have other African-American employees say the opposite of what you’re saying.” The company fired the plaintiff a month later.

Employers cannot invent ways to dig up reasons to fire an employee who has engaged in protected activity and avoid repercussions based upon a “subsequent fortuitous discovery of grounds for termination.”

Hey, before you go, don’t forget to register (here) for the return of The Employer Handbook Zoom Happy Hour: “Offboarding the C-Suite” on Friday, September 30, 2022 at Noon ET. It’s totally FREE!

We will explore workplace investigations of executive wrongdoing, terminations, and resignations. We’ll also discuss common drafting errors in C-Suite employment and separation agreements, enforcing post-employment obligations, and communicating the change to your workforce.

My guest will be Bob Ellerbrock, who focuses his practice on executive compensation, employee benefits, and ERISA.

Click here to register.

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