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Retaliation or Awkward Timing?

If you are going to terminate an employee on the heels of protected activity, you best have all of your ducks in a row.

July 11, 2014

Marla Montell reported an allegation of sexual harassment against her supervisor, Austin Day, to human resources at Diversified Clinical Services. The HR rep contacted Day almost immediately. The next day, Day called Montell and told her that she should resign or would be fired. Chose the former, and then sued the company for retaliation. 

The only evidence Montell presented in support of her retaliation claim was the timing of her termination in relation to her internal harassment complaint. For its part, the company claimed that Day was motivated by Montell’s performance history, which included a Performance Improvement Plan, a documented oral counseling and development plan, a Final Warning, and an Amended Final Warning. The Amended Final Warning, issued on May 3, 2011, provided Montell until June 2 to improve her performance or be fired. She resigned in lieu of termination on May 20.
 
In Montell v. Diversified Clinical Servs. (6/27/14), the 6th Circuit was faced with the question of whether the mere timing of Montell’s resignation was sufficient to support her retaliation claim under Title VII. Following its own precedent, and that of the Supreme Court, the 6th Circuit concluded that Montell’s retaliation claim should go to a jury to determine whether there existed a nexus between her protected activity and her forced resignation:
[E]mployees who are about to be fired should not abuse the civil-rights protections by filing frivolous harassment complaints. However, it cannot be open season for supervisors to sexually harass poorly performing employees. Such employees must still be provided with their legal protections.… [W]e must analyze the evidence of how and when the adverse employment action occurred to determine whether it squares with the action previously contemplated. If it does, then temporal proximity is not evidence of causality, but if the adverse employment action is unlike the action previously contemplated or does not occur on the schedule previously laid out, then the temporal proximity of the adverse action to the protected conduct is certainly evidence of causation.

In other words, was the decision to terminate Montell a mere continuation of her performance history, or a reaction to her protected activity? In this case, because Montell faced termination before the June 2 date contemplated by the Amended Final Warning, the court concluded that the adverse action sufficiently deviated from the performance history to create a jury issue over the timing of the termination.

If you are going to terminate an employee on the heels of protected activity, you best have all of your ducks in a row. If Montell’s performance objectively had not improved by June 2, I suspect this case would have come out differently. Because the employer jumped the gun on the termination, it called into question the employer’s motivation, especially within 24 hours of a harassment complaint.

Employees who complain about harassment or discrimination aren’t bulletproof. But, you better be damn sure you’re using the right ammo. If there can be any doubt about your motivation, you take a huge risk in firing an employee on a timeline such as that in Montell.