January 2012

By: James B. Sherman, Esq.

Retaliation claims have risen to the top of the Equal Employment Opportunity Commission’s list of most frequently alleged claims. This significant growth in retaliation claims may be attributed at least in part to the economy, where some employers have been accused of falsely relying on low demand as an excuse to “get rid of the trouble makers.” A more likely factor in the increase in retaliation claims, however, are recent court decisions that have made proving retaliation claims much easier for plaintiffs. A recent decision of the federal district court, in Minnesota, illustrates this point.

In Luisa Chavez-Lavagnino v. Motivation Education Training, Inc., Civ. No. 10-14 (D. Minn. Dec. 22, 2011), the court noted that merely having a good reason for discipline – in this case underperformance – may not be enough to prevent a jury verdict in favor of an employee in a retaliation case. In this whistleblower case the plaintiff alleged she was terminated after refusing her employer’s request to forge client signatures to obtain certain federal benefits and that the employer waited to terminate her until it found a suitable replacement. Although the employer produced some evidence of underperformance by the plaintiff, the court determined this merely raised a “credibility issue” to be decided by a jury, which found the employer guilty of retaliating against the employee. Importantly, the court noted that in view of the proximity of the plaintiff’s protected activity to the employer’sdecision to terminate, the employer had to “conclusively show, with abundant and uncontroverted evidence” that the employee was disciplined for a non-retaliatory reason. Id. at p. 9 (emphasis added) ( quotingthe U.S. Supreme Court in Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 148 (2000)).

This case and the legal precedent on which it is based beg the question: Can employers ever discipline an employee after he/she has engaged in some kind of “protected activity” (e.g. filed a charge or alleged discrimination, wage/hour violations, or acted as a “whistleblower”)? The answer is, “yes,” but the employer’s burden of proof is without question much higher, going well beyond having a “good reason.” The main question overlooked by most employers who get themselves into trouble with retaliation claims is: Why discipline now? An employee may be guilty of attendance violations, insubordination, or even worse, but if that bad behavior has been going on for months or even years and the employer has done nothing until after that employee engaged in protected activity, discipline will likely be seen as retaliation. The same result occurs where the protected employee is singled out for discipline for what others have gotten away with.

So what is an employer to do when a so-called “protected” employee is misbehaving? Unfortunately, all too frequently employers fearing a retaliation claim do nothing and treat the employee as “untouchable.” This need not be the case, although the situation is a delicate one full of legal pitfalls. The first issue the employer in this situation must face is: Would discipline be consistent with the way other employees involved in the same or similar conduct were treated? If the answer is “no,” no action can be taken without first changing past practice; notifying all employees in writing in advance of the change and then acting consistently going forward and not relying on any past behavior of any employee. Assuming the first issue can be answered in the affirmative (i.e. that others have been disciplined or, at the very least, have not been permitted to engage in the behavior of the “protected” individual, then address the next and perhaps most important issue: Why discipline now? Put another way: How long after an employee engages in protected activity must we wait before we can discipline him or her? If this issue presents even the slightest gray area it may be wise to give a written warning versus proceeding with more serious discipline, even if termination is customarily called for. This is not to say termination cannot take place under the right circumstances, but absent clear and convincing circumstances a prior warning, etc. is valuable evidence in defending against a retaliation claim.

Given the case law requiring that employers support a decision to discipline “protected” employees with “convincing” and “abundantly clear” evidence, documentation becomes essential. Where prior documentation is lacking in an employee’s file, it is never too late to start documenting problems though this process may require additional time and also that additional chances be given to the employee to correct his/her behavior before disciplinary action is taken. Examples of good documentation include a concise history of employee issues pre-dating an employee’s “protected activity,” if appropriate, with detailed information about what discipline the employee can expect if these issues continue. Building sufficient evidence to discipline a “protected” employee may take effort and time, but it is preferable to (a) treating any employee as “untouchable” or (b) losing a nasty retaliation lawsuit.

Many of these cases are delicate and it is advisable to consult with experienced legal counsel who are well versed in employment law and the latest trends in the law concerning rising claims of retaliation. Of course the hundreds of employers who participate in Wessels Sherman’s phone consultation program know that they can call any of our experienced employment law attorneys for specific advice on how to proceed in these and many other circumstances each step of the way, all without worrying about legal fees. If interested in this valuable service, contact Ms. Julie Anna Kruse at: (952) 746-1700, or email jukruse@wesselssherman.com.