E-mail: Stating the Reasons for Termination Can Lead to Liability

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E-mails stating the reasons for termination can come back to haunt employers in litigation.

Anything you say can, and will, be used against you in a court of law.  That familiar phrase comes from criminal law as part of a criminal suspect’s Miranda rights.  But, it applies equally well in employment discrimination cases.  Anything that an employer says about an employee can, and will, be used by the employee to prove discrimination.  Moreover, by putting it in an e-mail, the employer preserves the evidence for the employee’s benefit.

One employer learned that lesson the hard way in Stewart v. Wells Fargo Bank, N.A., No. 5:15-cv-00988-MHH (N.D. Ala. Mar. 14, 2017).  In Stewart, the employee was hired in 2012 and had a documented history of poor performance in 2012 and the first half of 2013.  She received a formal performance warning on June 26, 2013.  When she received that warning, she informed her supervisor that she was having health issues that needed to be resolved.  On July 9, 2013,  Wells Fargo granted FMLA leave to Stewart for neck surgery, and she returned to work on August 26, 2013.

On October 5, 2013, the supervisor sent an e-mail to Wells Fargo’s Human Resources Office recommending termination of Stewart’s employment.  While that e-mail detailed several performance issues, it also stated termination was justified because “Debby submits a request for medical leave.”

Those seven words were sufficient to submit the case to a jury.  The trial court found the statement sufficient to constitute “direct evidence” of discrimination.  Direct evidence is evidence that shows a direct correlation between a discriminatory or retaliatory attitude and the employment action complained of.  Once an employee submits direct evidence of discrimination, the employer’s asserted reasons for termination can only be decided by a jury.  Thus, the trial court in Stewart, refused to dismiss Stewart’s claims and allowed a jury to decide whether poor performance or FMLA leave was the real reason for termination.

Employers should take the Stewart case as a cautionary tale about the necessity of thoroughly training supervisors.  The facts in Stewart indicate that there were plenty of performance reasons for terminating the employee.  But, the supervisor went beyond those reasons and listed protected conduct as a reason for termination.  And, once that reason was listed, the employer was stuck with it.  Employers should carefully train their supervisors on permissible and impermissible grounds for termination, and further train them on the proper way to document poor performance.

Retaliation: Employees on Thin Ice Can’t Save Their Jobs with Discrimination Complaints

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Thin Ice retaliation
Employees on thin ice can’t save their jobs by making insincere claims of discrimination.

People don’t like to get fired from their jobs.  Thanks to the wonders of the internet, many employees also know that several employment laws (like Title VII of the Civil Rights Act of 1964) prohibit retaliation for making complaints of discrimination.  As a result, employees who know that their jobs are in trouble will frequently make last-minute claims of discrimination in the hope that their employer will not fire them — for fear of a retaliation law suit.

This tactic has become so commonplace that the Eleventh Circuit Court of Appeals has developed a line of cases which protect employers from such retaliation law suits.  Those cases focus on the concept of causation.  As part of his/her case, an employee claiming retaliation must show that termination was caused by the discrimination complaint.  In most cases, close timing between the complaint and termination is sufficient to establish causation.   But, there are exceptions to every rule, and the Eleventh Circuit has created an exception to the general rule on causation.  Close timing “between the protected activity and the adverse action alone generally cannot show causation when the employer has contemplated the adverse action before the protected activity takes place.”  Tucker v. Florida Dept. of Transport., No. 16-10420, 2017 WL 443632 at *3 (11th Cir. Feb. 2, 2017).

In short, if an employer is contemplating termination before an employee claims discrimination, then the employee must show more than close timing if he/she wants to win a retaliation claim.  The Eleventh Circuit provides the following rationale for that rule:   “Title VII’s anti-retaliation provisions do not allow employees who are already on thin ice to insulate themselves against termination or discipline by preemptively making a [ ] complaint.”   Id.

As a practical matter, I strongly encourage any employer “contemplating” termination to have documentation in support of termination prior to making the decision.  Additionally, employers should also proceed cautiously any time an employee complains about discrimination.  Sometimes, even last-minute discrimination complaints have merit, and employers should ensure that no discrimination occurs in the workplace.

 

Discrimination: Sometimes, ignorance is a good excuse.

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Ignorance discrimination knowledge
If a decision maker lacks knowledge of an employee’s protected class, an employer may possess an additional defense to discrimination claims.

We’ve all heard the phrase:  “Ignorance of the law is no excuse.”  Indeed, that point has been driven-home to at least one employer in Alabama:  Ignorance of the Law is No Excuse  While ignorance of the law is not a good excuse, sometimes, ignorance of the facts can provide employers with a defense to employment discrimination claims.

The vast majority of federal employment laws only prohibit intentional discrimination.  As a result, if a decision-maker possesses no knowledge (i.e. ignorance) of an employee’s protected status, then numerous decisions hold that there was no intentional discrimination.  For example, an employee suing under the Americans with Disabilities Act must prove that he or she was fired “because of” a disability.  But, the Eleventh Circuit Court of Appeals has clearly held that “a decisionmaker who lacks actual knowledge of an employee’s disability cannot fire the employee ‘because of’ that disability.”  Cordoba v. Dillard’s, Inc., 419 F.3d 1169, 1186 (11th Cir. 2005).  The Court has reached similar conclusions in cases involving allegations of: religious discrimination under Title VII of the Civil Rights Act of 1964, Lubetsky v. Applied Card Sys., 296 F.3d 1301, 1306 (11th Cir. 2002)(” an employer cannot intentionally discriminate against an individual based on his religion unless the employer knows the individual’s religion.”); and,  retaliation under Title VII,  Brungart v. BellSouth Telecomm., Inc., 231 F.3d 791, 799 (11th Cir.2000) (“A decision maker cannot have been motivated to retaliate by something unknown to him.”).

This post is not intended to encourage employers and decision makers to remain blissfully ignorant of issues in the work place.  Indeed, ignoring work conditions can quickly lead to more law suits.  But, if a decision maker was truly unaware that a terminated employee was part of a protected class, then there is a potential defense to an employment discrimination claim.

Judge Acker Continues To Limit Wrongful Termination Claims

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Wrongful Termination
Wrongful Termination Claims

In two previous posts, I wrote that United States District Court Judge William Acker provided employers with a weapon against employees making multiple claims of wrongful termination: Judge Acker’s Weapon  , Judge Acker Softens Position.  In ADA, ADEA, and Title VII retaliation cases, employees must prove that the protected characteristic was the “but for” cause of termination.  In other words, the employee must prove that the characteristic was the only reason for termination.  Judge Acker’s earlier rulings prohibited employees from filing complaints that claimed they were terminated because they were disabled, or old, or made claims of discrimination.

On May 26, 2016, the Eleventh Circuit Court of Appeals reversed Judge Acker’s reasoning in Savage v. Secure First Credit Union, No. 15-12704, 2016 WL 2997171 (11th Cir. May 26, 2016). The Court found that Rule 8(d) of the Federal Rules of Civil Procedure expressly permits plaintiffs to plead alternative and inconsistent claims.  So, employees are allowed to file a complaint claiming that they were terminated because they were disabled, or old, or made claims of discrimination.

Undeterred, Judge Acker issued a new opinion last Friday:  Jones v. Allstate Ins. Co., No. 2:14-cv-1640-WMA, 2016 WL 4259753 (N.D. Ala. Aug. 12, 2016).  Judge Acker found that Savage merely prevented him from applying his “but for” analysis at the beginning of a case at the motion to dismiss stage.  Nevertheless, he found that Savage did not control at the summary judgment stage — when depositions and discovery are complete.  As a result, he dismissed wrongful termination claims under the ADA, FMLA retaliation and Title VII retaliation.  Effectively, he found that each of those claims cancelled the others out.

Almost certainly, the employee in Jones will appeal, and it will be interesting to see how the Eleventh Circuit addresses Judge Acker’s analysis.  For now, however, Judge Acker’s analysis effectively forces employees to limit the number of discrimination claims that they pursue.

 

Suing Employees Could Violate OSHA’s Whistleblower Protections

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Man with Red Whistle in Office
Man with Red Whistle in Office

A recent decision from the Eleventh Circuit Court of Appeals discusses retaliation claims under the Occupational Safety and Health Act (“OSHA”).  Secretary of Labor v. Lear Corp., No. 15-12060, 2016 WL 2788693 (11th Cir. May 13, 2016).  Lear Corporation (“Lear”) sued a former employee in state court for defamation and intentional interference with business relations.  Thereafter, the United States Secretary of Labor sued Lear claiming that Lear’s state court law suit was merely retaliation for complaints by the employee about health and safety conditions at Lear’s manufacturing plant.

A trial court entered an injunction which prohibited Lear from suing any current or former employees, and Lear appealed.  The Eleventh Circuit Court of Appeals found that the Secretary of Labor was empowered to file such law suits and the trial court generally possessed the power to enter injunctions.  But, the Eleventh Circuit vacated the injunction because the trial court failed to conduct the correct analysis for issuing an injunction.

A federal trial court can only enjoin a state court law suit like Lear’s if it finds:  (1) retaliatory motive and a lack of a reasonable basis for filing the law suit; or, (2) preemption of the state court law suit by some federal law.  In this case, the trial court failed to make either finding and instead issued an injunction “based on potential for retaliation alone.”

In summary, the Eleventh Circuit recognized that law suits filed by employers in state court could be retaliatory and in violation of OSHA’s whistleblower protections.  But, such law suits can only be stopped by a federal court if the court performs the correct analysis.

An Employer’s Demand That More Work Be Performed is Not Discriminatory

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businessmen-42691_640

The Eleventh Circuit Court of Appeals recently held that “[a]n employer’s demand that more work be done — even if unjustified — is not discriminatory.”  Schrock v. Publix Super Markets, Inc., No. 15-14631, 2016 WL 3425124 at *2 (11th Cir. Jun. 22, 2016).  Employers might be tempted to overreact:  “Great! I can load up my employees with huge amounts of work and it will never be discriminatory.”  Nevertheless, I suggest that employers should proceed cautiously.

Context is everything.  The Eleventh Circuit’s issued its holding when discussing a Title VII retaliation claim.  To successfully state a claim for retaliation, an employee must be opposing conduct by the employer which violates Title VII.  And, the employee must have a good faith, reasonable belief that the employer’s conduct violates Title VII.

In Schrock, the employee complained to her supervisors that she was being required to manage a bakery without sufficient time to do so.  When she was later terminated from employment, she claimed that her employer was retaliating for her complaints about being overworked.  She apparently never claimed that she was overworked because of her race, gender or other protected characteristic.  Therefore, she could not successfully pursue a retaliation claim, because a mere complaint about overwork is not protected by Title VII.

The employee in Schrock might have possessed a better claim if she complained:  “You are overworking me because I am African-American.”  But, Title VII will not provide an employee with protection for merely saying:  “You are working me too much.”

 

Mishandling Company Funds Is Grounds For Termination

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Cash

The Eleventh Circuit Court of Appeals recently recognized that repeated mishandling of company funds in a short time period is a legitimate basis for terminating an employee.  Chukes v. Sailormen, Inc., No. 15-12192, 2016 WL 1534071 (11th Cir. Apr. 15, 2016).

Chukes began work as an Assistant Manager for a Popeye’s restaurant franchise in September 2012.  By October 26, 2012, her restaurant’s safe was short on cash at least three occasions.  On that date, the franchise suspended Chukes and launched an investigation into the missing funds.  The supervisor conducting the investigation testified that he intended to convert the suspension to termination if the investigation determined that Chukes was responsible for the shortages.

The day after her suspension, October 27, 2012, Chukes claimed that another employee was terminated after rejecting sexual advances by a co-worker.  Thereafter, the supervisor conducting the investigation determined that Chukes was taking money from the safe, and Chukes’ employment was terminated.  Chukes sued for discrimination and retaliation under Title VII of the Civil Rights Act of 1964.  Those claims were dismissed in the United States District Court and the Eleventh Circuit affirmed dismissal.

Chukes tried to claim that her termination was discriminatory because funds were missing following the shift of another manager.  The Eleventh Circuit rejected that argument and relied upon the requirement that “the quantity and quality of the comparator’s misconduct be nearly identify to prevent courts from second-guessing employer’s reasonable decisions and confusing apples and oranges.”  The comparator had worked as a manager for years and money was only found missing once during his tenure.  In contrast, money was found missing three times during Chukes’s two-month employment period.

Federal courts regularly reject attempts by employees to compare their misconduct to that of other employees who are not terminated, because the comparator employees are not “nearly identical.”  Indeed, the “nearly identical” standard also played a role in a recent decision dismissing claims against Hyundai in Alabama: Eleventh Circuit Affirms Dismissal of Retaliation Claim Against Hyundai  Thus, the Chukes and Hyundai cases demonstrate the importance of implementing uniform standards of punishment for similar conduct by similar employees.

 

 

“Manager Rule” Protects Tuskegee From Retaliation Claim

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Manager

On April 21, 2016, Senior United States District Judge W. Harold Albritton found that Tuskegee University’s former Director of Human Resources, Ruby McMullen, could not sue the University for retaliation under Title VII of the Civil Rights Act of 1964.  See McMullen v. Tusekegee University, No. 3:15CV16-WHA, 2016 WL 1601040 (M.D. Ala. Apr. 21, 2016).  Judge Albritton’s decision hinged upon the fact that Ms. McMullen’s arguably protected conduct occurred in the course of her normal job performance as Director of Human Resources.

On December 2, 2013, Tuskegee employee Tracy Boleware filed a complaint alleging harassment by University Vice-President Dr. Mohammad Bhuiyan.  Later that day, McMullen attended a meeting with Bhuiyan and the University’s General Counsel where termination of Boleware’s employment was discussed.  McMullen warned that termination of Boleware was, or might appear to be, retaliation for her harassment complaint.  McMullen was told that the University’s president had decided prior to December 2 to terminate Boleware’s employment.

After the December 2 meeting, McMullen met with the University President who told her that he did not feel she was on his team and wanted to let her know where she stood.  She also attended a subsequent meeting with the President, Bhuiyan and the General Counsel where they complained that she did not warn them about retaliation.  McMullen protested that she warned them in the December 2 meeting about the appearance of retaliation.

McMullen’s employment was terminated on January 21, 2014.  McMullen then sued Tuskegee for retaliation.  She claimed that Tuskegee retaliated against her, because she opposed the retaliatory termination of Boleware.

Judge Albrtitton granted summary judgment and dismissed the retaliation claim.  In part, he relied upon the “manager rule,” which holds:  “a management employee that, in the course of her normal job performance, disagrees with or opposes the actions of an employer, does not engage in ‘protected activity.'”  McMullen, 2016 WL 1601040 at *4.  “Instead, the employer engages in protected activity if she crosses the line from being an employee performing her job, to an employee lodging a personal complaint.”  Id. at *5.  Because McMullen opposed termination of Boleware in the course of her normal job performance as Director of Human Resources, Judge Albritton found that she could not successfully sue Tuskegee for retaliation.

The “manager rule”provides an effective defense for employers who are sued by managerial employees for retaliation.  Those employees are frequently required to give their advice and input regarding termination decisions.  If those managerial employees are later terminated themselves, the “manager rule” makes it very difficult for them to claim retaliation based upon their involvement in other termination decisions.

 

General Complaints About “Harassment” Are Not Protected By Title VII

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Harassment in its Many Forms and Types
Harassment in its Many Forms and Types

On April 18, 2016, United States District Court Judge David Proctor confirmed that generalized complaints by employees about “harassment” are not protected by Title VII.  Instead, the “harassment” complained about must be harassment that is prohibited by Title VII.  See Ellison v. City of Birmingham, No. 2:14-CV-00154-RDP, 2016 WL 1554927 (N.D. Ala. Apr. 18, 2016).

In Ellison, the employee sued for retaliation under Title VII of the Civil Rights Act of 1964, alleging that she was terminated for complaining about being harassed.  But, when complaining about harassment, an employee can only succeed if she possesses “a good faith, objectively reasonable belief that such harassment was unlawful under Title VII.”

While the employee in Ellison unquestionably complained about the way she was treated at work, Judge Proctor found that she did not complain about treatment that violated Title VII.  Instead, she complained about being: deemed a “troublemaker,” called a “devil” for “keeping up mess,” and called “baby duck” for following around behind a friend of hers.  Judge Proctor found that those complaints were merely about “unspecified personal conflict” and “wholly unrelated to Title VII.”

Judge Proctor’s decision simply reinforces the well-established principal that Title VII is not a “workplace civility code.”  Thus, not all “harassment” violates Title VII, and merely complaining about “harassment” does not grant protection under Title VII.  Instead, only complaints about harassment based upon a protected characteristic are entitled to protection.

 

Best Served Cold: 12 Years Between Protected Conduct and Retaliation

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Anger

On April 6, 2016, Chief United States District Court Judge Keith Watkins sent a Title VII retaliation claim to a jury trial — even though more than 12 years expired between the protected conduct and the retaliatory action.  See Pace v. Alfa Mutual Ins. Co., No. 2:13-CV-697-WKW, 2016 WL 1370029 (M.D. Ala. Apr. 6, 2016).

Title VII of the Civil Rights Act of 1964 provides protection to employees who participate in proceedings involving claims of discrimination made by other employees.  In Pace, Mr. Pace provided interviews and deposition testimony in September 2000 in connection with a sexual harassment claim made by a co-worker against Alfa Insurance Company and his direct supervisor, Alvin H. Dees, Jr.  After the interviews and deposition, Dees resigned from employment with Alfa in October 2000.  Mr. Pace continued to work with Alfa.

In the fall of 2012, the executive leadership at Alfa changed, and Dees was rehired as Mr. Pace’s supervisor effective February 1, 2013.  On January 31, 2013, Mr. Pace and Dees engaged in a telephone conversation in which Dees said:  “[B]oy, I bet you thought you’d never have to mess with me again now, didn’t you?” Thereafter, Dees was hostile towards Mr. Pace, and Mr. Pace received a demotion on April 30, 2013.  Mr. Pace sued claiming that his demotion was in retaliation for his protected interviews and deposition in 2000.

As part of a retaliation claim, a plaintiff like Mr. Pace must prove that his demotion was caused by his protected conduct (the depositions and interview).  The Eleventh Circuit Court of Appeals has generally held that causation is proven by a close period of time between the protected conduct and the adverse job action.  But, the Eleventh Circuit has held that a three to four month period of time is too long to prove causation.  See Thomas v. Cooper Lighting, Inc., 506 F.3d 1361, 1364 (11th Cir. 2007).

Naturally, Alfa asked Judge Watkins to dismiss the retaliation claim:  if three to four months is too long, then 12 years must be far too long.  Judge Watkins disagreed and relied heavily upon Dees’s telephone call with Mr. Pace:  “The evidence reflects that, on January 31, 2013, the day before officially returning to Alfa, Plaintiff and Dees engaged in a telephone conversation in which Dees said, ‘[B]oy, I bet you thought you’d never have to mess with me again now, didn’t you?’ … Thus, despite the fact that years had passed since the time of Plaintiff’s participation in the Wilson matter, the Plaintiff’s testimony indicates that Dees had not forgotten the circumstances surrounding why he left his employment with Alfa in 2000.”  Pace, 2016 WL 1370029 at *9.  That finding was sufficient to support causation.

The Pace case is probably an outlier in terms of retaliation claims.  Nevertheless, if revenge is a dish best served cold, don’t brag when you are about to retaliate for old protected conduct.