Tag Archives: retaliation claim

Suspicious Timing of Termination Supports Retaliation Claim

Contributed by Debra Mastrian, December 12, 2016

A recent 7th Circuit Court of Appeals decision, Gracia v. Sigmatron, International, Inc., Case No. 15-3311, is a good reminder to employers to be careful in taking adverse action against an employee who recently engaged in statutorily protected activity. In Gracia, a longtime employee, who had complained of sexual harassment by her supervisor and filed a charge of sex discrimination with the Equal Employment Opportunity Commission (EEOC), was fired two weeks later for allegedly allowing a subordinate to make a production error on a customer order.  The employee sued her former employer for sex discrimination and retaliation. While Gracia was unsuccessful on her sexual harassment claim, a jury found in her favor on the retaliation claim, awarding $57,000 in compensatory damages and $250,000 in punitive damages.

39454888 - notice of employee termination with glasses and ballpoint pen.Gracia was highly regarded and had received a number of promotions. In her current role as assembly supervisor, she was responsible for production output, quality, and overseeing the work of her team members on the assembly line. Gracia’s male supervisor began sending her sexually graphic photographs through the company’s email system. Gracia did not complain because of her supervisor’s position and his friendship with the company’s president. The supervisor then began writing Gracia up for attendance issues, even though Gracia had not been previously written up for similar problems in the past and, in fact, had been told her attendance was “excellent.” Gracia alleged the supervisor began calling her at home and asking her out. She declined and was suspended a few days later for attendance problems.

Gracia then complained to HR about her supervisor. HR informed the company’s president, who ultimately told Gracia and her supervisor to ‘shake hands’ and get along. Gracia, unhappy with the company’s response, filed a charge with the EEOC. Two weeks later, she was fired after one of her subordinates made a mistake, even though others made similar mistakes and were not terminated. Perhaps of significance to the jury on the punitive damages award was evidence that the company never admonished the supervisor for sending the graphic photographs but rather simply told him to stop using the company’s email for non-business reasons. The company also refused to admit the photographs violated the company’s sexual harassment policy.

On the retaliation claim, the 7th Circuit reiterated the general rule that timing alone is rarely enough to support a retaliation claim; however, if there is other circumstantial evidence, it may raise an inference of retaliatory motive. Here, the suspicious timing of Gracia’s termination, coupled with evidence that others had not been terminated for similar mistakes, supported the retaliation claim.

Employers are reminded that before you take action against an employee who has recently engaged in protected activity (i.e., complained of discrimination, filed a charge), make sure you have, or would have, taken the same action against other employees for doing the same thing. Consult with experienced legal counsel before taking adverse action against a ‘protected’ employee.

Unanimous U.S. Supreme Court: EEOC Must Attempt to Conciliate Claims

Contributed by Noah A. Frank

Amid much anticipation, the Court unanimously held in Mach Mining, LLC v. EEOC that under Title VII, the EEOC must attempt to conciliate prior to filing suit against an employer. U.S. Sup. Ct., No. 13-1019 (Apr. 29, 2015). Title VII’s enforcement mechanism governs employment discrimination and Gavelretaliation claims related to race, color, religion, sex/pregnancy, national origin, age, and disability.  Under Title VII, the EEOC’s duty is to endeavor to eliminate discrimination by informal methods of conference, conciliation and persuasion and to insist upon legal compliance; the employer’s obligation is to refrain from illegal conduct.

Conciliation involves communication and exchange of information between the parties.  The EEOC must:

  • Inform the employer about the specific allegation(s);
  • Describe what the employer has allegedly done;
  • Describe which employee(s) or class allegedly suffered;
  • Engage in some form of discussion with the employer; and
  • Provide the employer an opportunity to cure the allegedly discriminatory practice.

However, the requirement that the EEOC conciliate is but a minor victory for employers as the required effort is limited to the employer being afforded a chance to (i) discuss and (ii) rectify the specified discriminatory practice.    Further, the proper remedy for the EEOC failing to take those specific conciliation steps prior to bringing a cause of action is for the court to order the EEOC to undertake the mandated efforts to obtain voluntary compliance.

What this means for businesses:

An ounce of prevention is worth years and thousands (or more) of dollars of cure.  Companies should proactively ensure that their written employment policies and implemented practices comply with federal and state law.

If a claim arises or a charge of discrimination is filed, employers should engage seasoned employment counsel who regularly work with the EEOC and understand the ramifications of this decision to help investigate and respond to the charge.

And, in those cases where the EEOC finds “reasonable cause” of a violation, counsel should make certain to engage the EEOC in good faith discussion and conciliation efforts along the lines outlined by the Supreme Court with an eye to resolving the claim, if at all possible.


Termination for Refusing to Take Workers’ Comp. Drug Test Found Not Retaliatory

Contributed by Noah A. Frank

Recently, the Federal Seventh Circuit Court of Appeals (Illinois, Wisconsin, and Indiana) affirmed summary judgment for the employer in a Workers’ Compensation retaliation claim. Phillips v. Continental Tire The Americas, LLC, — F.3d —, 2014 WL 572339 (Feb. 14, 2014).  Employer Continental Tires (“Continental”) had a written substance abuse policy which required drug testing for several enumerated reasons, including initiation of a workers’ compensation claim.  The policy further provided that an employee’s refusal to be tested was grounds for immediate suspension pending termination.

Twenty-two year veteran employee Jeff Phillips presented to Continental’s health services to report numbing fingers and to initiate a workers’ compensation claim.  Phillips refused to be drug tested because he felt it was not necessary to initiate his claim.  Phillips was terminated, though he ultimately received workers’ compensation benefits.

The Seventh Circuit held that a workers’ compensation claimant must affirmatively show that an adverse employment action was causally related to seeking of rights protected under the Illinois Workers’ Compensation Act, and not merely that a discharge was connected the filing of a claim. Here Phillips failed to show the nexus between his protected rights and termination because:

  • Continental had in place (in advance) a written substance abuse policy;
  • Continental consistently enforced the written substance abuse policy;
  • Continental discharged other employees who failed to submit to drug testing under the policy;
  • Phillips testified at his deposition that he (i) was terminated for failing to submit to drug testing, (ii) had no evidence or information that there was a different reason for his termination, and (iii) believed he would still be employed had he submitted to drug testing; and
  • Other Continental employees (including Phillips previously) had initiated workers’ compensation claims and received benefits without being discharged.

Best Practices:

This case shows the importance of maintaining and enforcing written employment policies – including work rules and employment handbooks.  Employers will want to be able to demonstrate that policies are administered evenly, especially when the result is an adverse employment action such as termination.  Best practices include:

(1)    Create, implement, and update your substance abuse and drug testing policies: consider the impact of medical marijuana under the Compassionate Care Act (eff, 1/1/2014) and whether you should implement zero tolerance policies;

(2)    Consistently and evenly enforce the substance abuse policy (and all other employment policies);

(3)    In union settings, get the buy-in of labor for a proactively safe work environment;

(4)    When discharging or otherwise disciplining employees for violation of a company policy, be clear on the basis – do not apologize or add other reasons;

(5)    Demonstrate that similarly situated employees who complied with the legitimate employment policy were not adversely impacted (e.g., workers’ compensation claimants who submitted to a drug test received benefits under the Act and were not subjected to employment discipline so long as they tested clean); and

(6)    Maintain state-mandated workers’ compensation insurance, and confirm with the carrier whose responsibility it is to initiate and pay for substance testing – be sure to share the test results with each other to the extent necessary and permissible.