Want the secret to defending retaliation claims?

As in, guaranteed date with a jury.

Oh, you thought I was going to tell you how to avoid a retaliation lawsuit? You’re so cute that way.

Last Chance! Register here to join me and Cigna’s Robyn Marino, Esq. for our free webinar: How to Navigate Alcoholism and Substance Abuse under the FMLA/ADA. We kick it off today at noon EDT.

First Step: Your employee complains about discrimination at work.

Ashley Bossi worked — err, used to work for Bank of America (more on that in a bit). Hired in 2009, Ms. Bossi’s tenure as a customer service representative at BOA was rocky, to say the least. She received a number of a disciplinary write-ups for this and that.

She also claims that her supervisor sexually harassed her.

To its credit, BOA appears to have taken that complaint quite seriously. That is, it investigated and, although it determined that Ms. Bossi’s claims were unsubstantiated, it issued a written warning to Ms. Bossi’s supervisor and required him to complete workplace harassment training.

Second Step: Learn that your employee intends to sue the company.

Unfortunately, the close of the investigation is not the end of our story. Although, Ms. Bossi and BOA agreed that the supervisor did not engage in any further harassment or misconduct, the company learned that Ms. Bossi began to consider a potential lawsuit against it.

Third Step: Fire your employee eight days later.

That’s right, just eight days after learning that Ms. Bossi was considering a lawsuit against the company, BOA fired her for “poor performance.”

Well, hold on here. Can’t an employer fire an employee for poor performance whenever it wants? Well, sure. An employer can do that. But should it?

Consider the three elements of a retaliation claim:

  1. Employee complains about discrimination (e.g., threatens to sue)
  2. Employee faces some adverse employment action (e.g., he gets fired)
  3. Step two occurs because of step one.

So, eight days, huh? All by itself, could eight days between an employee’s threat to sue the company and her subsequent termination be a short enough period of time to suggest retaliation? According to the United States District Court for the Middle District of Pennsylvania (opinion here), yerp:

We also agree with Plaintiff that a causal link existed between the protected activity and the adverse action. To establish causation, a plaintiff must show: 1) a temporal proximity between the protected activity and adverse action; 2) a pattern of antagonism after the protected act; or 3) the record taken as a whole supports an inference of retaliation. … Here, the temporal proximity is evidence of causation.

Indeed, in the Third Circuit where I practice, “temporal proximity” as we law nerds call it, without more, can create enough of an inference of retaliation such that a jury will have to sort it out.

How short? Probably less than 10 days; definitely less than 7.

So, while I continue to preach “hire slow and fire fast,” let’s be mindful of our surroundings. Fire fast after  performance problems arise. Firing fast after an employee complains about discrimination is an exception to the mantra.



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