As our employment attorneys at Spitz, The Employee’s Law Firm have discussed previously, retaliation claims are considerably easier to prove than race/color, religion, gender (including pregnancy and LGBTQ+ status), national origin, and disability discrimination claims. (Best Law Reads: Retaliation Is Still Easier To Prove Than Discrimination; What Are Examples Of Unlawful Retaliation At Work?;Why Retaliation Is The Easiest Employment Claim). This is because retaliation claims are relatively straightforward: if an employee engages in some activity protected by law — which includes opposing, reporting, or participating in an investigation into discrimination or harassment — an employer cannot take an adverse action against the employee simply because the employee engaged in that protected activity.
However, some employees will try to manipulate this law to their advantage. (Best Law Read: Can I Avoid Poor Performance Discipline By Reporting Discrimination?). Other employees have both legitimate complaints of discrimination or harassment in the workplace but also have their own preexisting poor performance and/or disciplinary history. A recent case from the United States Court of Appeals for the Sixth Circuit addressed this situation.
What do I need to prove to show retaliation?
Best Wrongful Termination Lawyer Answer: To make a prima facie showing of retaliation, an employee must show “(1) he . . . engaged in protected activity, (2) the employer knew of the exercise of the protected right, (3) an adverse employment action was subsequently taken against the employee, and (4) there was a causal connection between the protected activity and the adverse employment action.” Niswander v. Cincinnati Ins. Co., 529 F.3d 714, 720 (6th Cir. 2008) (Best Law Read: What Does Prima Facie Mean?). If the employee makes this showing, the burden shifts to the employer to articulate a “legitimate, nondiscriminatory reason for its actions.” Imwalle v. Reliance Med. Prods., Inc., 515 F.3d 531, 544 (6th Cir. 2008). If the employer meets this burden, the employee must demonstrate that the legitimate reason offered by the employer “was a pretext designed to mask retaliation.” Id.
When an employee brings a retaliation claim under a state anti-discrimination statute, a court will typically evaluate the claim using the same standards that apply to claims brought under federal statutes, such as Title VII of the Civil Rights Act of 1964.
What happens if an employer claims it was going to fire an employee before the employee’s complaint of discrimination or harassment?
Best Employment Law Firm Answer: This was the primary issue posed to the Sixth Circuit in Christina Tharp v. Apel International, LLC, No. 21-6070, 2022 WL 2981770 (6th Cir. July 28, 2022). Christina Tharp was assigned by a staffing agency to a temporary position working for Apel International, LLC (“Apel”), which lasted from early September to mid-December 2019, when Apel declined to hire Tharp as a full-time employee.
During Tharp’s employment, a number of issues arose regarding her attendance and performance. In the first two months Tharp worked for Apel, she would miss on average one work shift per week. In total, she accumulated eight absences during these first few months of employment. Tharp was also written up by her supervisor for taking excessive breaks and lunches at unscheduled times. Apel’s management also suspected Tharp may have been using illicit substances during her work shifts. According to Stephanie Noe, Apel’s Human Resources Manager, Apel “had no intention of ever hiring [Tharp] as an employee due to the number of issues she had throughout” her first 90 days of employment.
If the facts stopped here, I’m pretty sure that everyone would agree that if true, this employee would not be up for a permanent job. But, the facts don’t stop here.
On or about December 2, 2019, Tharp submitted a complaint to Noe alleging she had been sexually harassed by a co-worker since September 2019. Apel conducted an investigation into Tharp’s complaint, taking statements from two other employees who verified that Tharp had been the target of sexual harassment by the accused co-worker. The harasser ultimately resigned when the complaint was brought to his attention. There was no dispute that the employer took appropriate actions in response to the complaint of sexual harassment.
Thereafter, when Tharp missed an additional three days of work, Noe contacted Tharp’s staffing agency on or about December 17, 2019, asking that Tharp be released from her temporary assignment with Apel.
Tharp filed a single-count complaint in Kentucky state court against Apel, alleging retaliation and wrongful termination against Tharp for submitting her complaint of sexual harassment. The case was removed to the United States District Court for the Western District of Kentucky, which granted Apel’s motion for summary judgment, agreeing that Tharp had failed to establish a causal connection between her termination and the submission of her sexual harassment complaint. Importantly, Tharp did not provide any evidence to dispute her conduct. The Sixth Circuit affirmed the district court’s ruling, finding that “Tharp’s filing of the sexual harassment complaint cannot reasonably be said to be the cause of Apel’s decision not to hire her as a permanent employee.”
Importantly, the Court heeded the United States Supreme Court’s warning that “employees who see the proverbial writing on the wall that they are about to be fired should not be able to use Title VII protections to insulate themselves from adverse employment actions that were previously contemplated.” Montell v. Diversified Clinical Servs., Inc., 757 F.3d 497, 507 (6th Cir. 2014) (citing University of Texas Southwestern Medical Center v. Nassar, 570 U.S. 338 (2013)). In doing so, the Court followed Sixth Circuit precedent holding that “causation is lacking when an employer follows a pre-existing line of action regardless of the employee’s protected action.”
Now, this is a little unfair to say that the employee in this case reported real sexual harassment just because the writing was on the wall. Employees should always report sexual harassment and such reporting will always be protected. However, that does not mean that it wipes the reporting employee’s slate clean of his or her own bad conduct or poor performance.
Regarding the issue of causation, the Sixth Circuit emphasized the various attendance and disciplinary issues Tharp had during the few months she was temporarily employed by Apel. Also considering testimony from Noe that Apel “had no intention” of hiring Tharp as a permanent employee due to these issues, the Court found that “[b]ecause Apel proceeded along previously contemplated lines when it declined to convert Tharp to a permanent employee, Tharp has failed to proffer sufficient evidence of causation.”
How do I know if I have a retaliation claim?
Best Wrongful Termination Lawyer Answer: Despite the various issues Christina Tharp may have had during her employment, her case demonstrates a typical strategy used by employers in defending employment discrimination cases — chalk the firing up to attendance and/or disciplinary issues that have nothing to do with the employee’s protected activity. As with all claims of employment discrimination, it is important that you speak with an attorney to determine your rights as an employee. If you believe you have been retaliated against for complaining about discrimination or harassment in the workplace, then call the right attorney to schedule a free and confidential consultation. (Read: What is the Spitz No Fee Guarantee?) Call our lawyers in Cleveland, Columbus, Detroit, Toledo, Cincinnati and Raleigh to get help now. Spitz, The Employee’s Law Firm and its experienced attorneys are dedicated to protecting employees’ rights and solving employment disputes.
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