Over 20 years ago, a lawyer in a case that I was working on made a “target of opportunity” argument in a retaliation case. He claimed that his client engaged in protected activity more than a year before she was terminated, but that her employer used a later, relatively small instance of misconduct as a “target of opportunity” to get rid of her. According to him, the small instance of misconduct was the first opportunity that the employer was given to retaliate against his client after her protected conduct. In the course of that argument, the attorney eloquently made reference to the movie “Dr. Strangelove,” and it has always been a case that I remembered.
On October 10, 2017, the Eleventh Circuit Court of Appeals issued an opinion that shoots his “target of opportunity” argument out of the sky. See Cooler v. Layne Christensen Co., No. 16-17773, 2017 WL 4512159 (11th Cir. Oct. 10, 2017). Joseph Cooler was an African-American who was subjected to a difficult work environment in which white co-workers would use the “N Word” and call him “boy.” He began dating a white woman in October 2013, and his co-workers increased their hostile treatment of him. Cooler reported the treatment to a supervisor and reported other conduct in October 2013. The supervisors never investigated or followed-up. On May 1, 2014, Cooler was attending an out-of-town training, but missed between 20 and 40 minutes of that training. When confronted, Cooler denied any responsibility. His employer terminated his employment, allegedly for wasting company time and refusing to accept responsibility.
Cooler sued for retaliation, claiming that he was actually fired for his complaints about racial harassment. In retaliation cases, an employee is required to prove that his protected complaints caused his termination. In most cases, causation is proved by close timing between the complaints and the termination. Generally in the Eleventh Circuit, if a termination occurs more than three months after a complaint, causation will be difficult to prove.
In Cooler’s case, at least six months passed between his complaints and his termination, which the Court found “was not close in time to his protected activity.” Thus, Cooler’s attorney attempted to make the “target of opportunity” argument: “[H]e argues he was fired at Layne’s first opportunity to retaliate against him. Cooler explains that he was not disciplined in any way before the training, so missing part of the training was the first opportunity Layne had any excuse to fire him.” The Eleventh Circuit rejected that argument by essentially finding that the missed training was not the first opportunity for retaliation. Instead, Cooler was continuously employed during the six-month period and his employer had “a continuous opportunity to retaliate against him.” Therefore, the Court found that the six-month period was too long, and Cooler’s claim failed for lack of causation.
One word of caution to employers: The Eleventh Circuit did not completely obliterate the potential for a “target of opportunity” argument in future cases. In a footnote, the Court recognized that the “target of opportunity” argument might be successful in situations “where the retaliator just assumed a position of power over the plaintiff.”