Employees may prevail against employers who use false accusations to hide severe retaliatory behavior.

Victims of workplace discrimination and/or harassment are encouraged to file a complaint with their employer or a government entity, such as, the Equal Employment Opportunity Commission (EEOC).  Filing a complaint is generally a prerequisite to pursuing a claim in state or federal courts.

However, filing a discrimination complaint can trigger a retaliatory response from the employer.  In general, retaliation is an impulsive reaction by an employer to a discrimination/harassment complaint filed by an employee.  The employer’s reaction to the employee’s complaint results in harsher treatment, which can include termination.  Like discrimination, retaliation is illegal.  Kim v. Nash Finch Co., 123 F.3d 1046 (8th Cir. 1997) (“There was also evidence that Nash Finch had ‘papered’ his personnel file with negative reports…”); Gowski v. Peake, 682 F.3d 1299 (11th Cir. 2012) (The evidence here showed that the administration intended to retaliate against Gowski and Zachariah because of their EEO activity and then created a hostile environment by spreading rumors about the doctors, damaging their reputations, and disciplining them.)

While retaliation is generally impulsive, some employers are more calculating in the way they retaliation against employees. These employers use pretext (false justification) to hide their true retaliatory motive.

Like a spider and its web, these employers wait for the employee to make a minor mistake and then they use the employee’s minor mistake to falsely justify a severe retaliatory response, such as, a termination.  Hamilton v. General Electric Co., 556 F.3d 428, 435 (6th Cir. 2009) (“…Hamilton alleges that the bosses heightened their scrutiny of him after he filed his EEOC complaint. See Jones v. Potter, 488 F.3d 397, 408 (6th Cir. 2007) (noting that an employer cannot conceal an unlawful discharge by closely observing an employee and waiting for an ostensibly legal basis for discharge to emerge).”); EEOC v. Boeing Co., 577 F. 3d 1044, 1050-3 (9th Cir. 2009) (“…after Boeing substantiated a sexual harassment claim Wrede had filed, she received lower RIF scores than most engineers in her skill code and was subsequently terminated.[1] These scores were lower than the scores she had received in two previous RIF evaluations in April and July of 2002.”)

In court, most employers use pretext as a standard defense against an employee’s claim of retaliation.  An employee with a record of satisfactory job performance will suddenly be accused, by their employer, of poor job performance or serious misconduct.  Often, this defense ploy lacks credibility on its face.

Courts recognize that employers use pretext to hide their true retaliatory motive.  With this in mind, employees may prevail in court by proving that their employer’s justification is false and retaliatory.  An employee’s record of satisfactory job performance or good conduct often speaks for itself.  (“[A] plaintiff’s prima facie case, combined with sufficient evidence to find that the employer’s asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated.”).  Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000); Merritt v. Old Dominion Freight Line, Inc., 601 F.3d 289, 295 (4th Cir. 2010); Mereish v. Walker, 359 F.3d 330, 336 (4th Cir. 2004)

 

 

Bryan A. Chapman, Esquire

www.baclaw.com

bchapman@baclaw.com

202 508-1499

 

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Retaliation: Surviving the Employer’s Accusation of Poor Performance or Misconduct.

In a workplace, retaliation occurs when an employee complains about or opposes discrimination and is then subject to harsh treatment, such as, harassment or termination.  The harsh treatment must be a direct result of the employee’s complaint about or opposition to discrimination.  In other words, “but for” his or her complaint or opposition, the employee would not have been subject to harsh treatment.

The Supreme Court expanded the scope of retaliation in Burlington N. & Santa Fe Rwy. Co. v. White, 548 U.S. 53 (2006).  To establish a prima facie claim for retaliation, a plaintiff must show:

1)       they engaged in protected activity;

2)       the defendant took action that would be “materially adverse to a reasonable employee or job applicant”; and,

3)       there is a causal connection between the protected activity and the asserted adverse action.

Materially adverse means harmful enough to “dissuade a reasonable worker from making or supporting a charge of discrimination.”  Burlington, 548 U.S. 68.

To protect itself against a retaliation claim, an employer may accuse an employee, who has a long history of satisfactory job performance, of being a bad employee.  By accusing the employee of poor job performance or misconduct, the employer creates a non-retaliatory excuse for its retaliatory conduct.  If the employer can advance a non-retaliatory explanation for its action, the employee’s retaliation claim may not meet the “but for” standard and be subject to dismissal by an administrative agency or court.  To counter this, an employee must demonstrate that the employer’s excuse is not believable or mere pretext for retaliatory conduct.

An opportunistic employer may simply wait for an opportunity to accuse the employee of poor performance or misconduct.  However, this ploy may not always succeed. Hamilton v. General Electric, 556 F.3d 428 (6th Cir. 2009) (We have held that when an “employer . . . waits for a legal, legitimate reason to fortuitously materialize, and then uses it to cover up his true, longstanding motivations for firing the employee,” the employer’s actions constitute “the very definition of pretext.”)  An employee who complains about or opposes discrimination should not let their guard down.

Management may conspire against the employee or solicit complaints from the employee’s co-workers.  Under these circumstances, new accusations of poor performance or misconduct may seem contrived. Brady v. Office of Sergeant at Arms, 520 F.3d 490, 496 (D.C. Cir. 2008) (“[t]he question is not whether the underlying…incident occurred; rather, the issue is whether the employer honestly and reasonably believed that the underlying…incident occurred”)  An employee should document his or her experience in the workplace and identify potential witnesses.

If you believe your employer is retaliating against you, seek the advice of an experienced attorney as soon as possible.

Bryan A. Chapman, Esquire

www.baclaw.com

Published in: on January 26, 2014 at 4:52 pm  Leave a Comment  
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