Retaliation—The Marcia Brady Of Employment Law

If middle child Jan Brady from the TV show the Brady Bunch were an HR manager, she’d scream “Retaliation, Retaliation, Retaliation!” instead of “Marcia, Marcia, Marcia!” Just as poor Jan couldn’t get a break from hearing about Marcia’s general excellence—her hair alone was perfect!—neither can employers seem to escape claims of retaliation by their employees.fired

Everywhere employers turn, there’s another retaliation claim being made against them under Title VII of the Civil Rights Act of 1964, the Family and Medical Leave Act (FMLA), or another state or federal statute. Here’s yet another one.

Welcome Back, Kotter

“Jan” worked in Sangamon County as an administrative assistant to the Chief Judge of the Circuit Court of the Seventh Judicial Circuit, which is a part of the Illinois state court system. In 2012, Jan experienced health problems that required her to take leave under the FMLA on two separate occasions—March to May 2011 and June to August 2012.

The day she returned from leave in 2012, she was given a letter from “Cindy,” the presiding judge of Sangamon County. The letter informed her that she was being placed on paid administrative leave pending a disciplinary meeting with the Chief Judge of the Court, “Greg.”

The letter described several alleged instances of misconduct by Jan that occurred between March 2011 and May 2012. Among other things, the letter stated that in March 2011, she tried to change the assignment schedule for court reporters and told others to keep the new system “quiet” while she tried it out. The letter asserted that she lacked authority to make the change and accused her of insubordination and conduct unbecoming a judicial employee.

The letter also stated that in 2011, Jan disregarded a request from Cindy to meet about returning to work and, instead, contacted Greg, which allegedly constituted additional insubordination. Finally, the letter addressed an incident that occurred in May 2012, just before Jan took her second leave under the FMLA, when she was said to have impermissibly let another employee into the court’s vault where notes and other items were stored and later failed to notify anyone that a box was missing from the vault.

The letter invited her to respond to the allegations at an in-person meeting with Greg and others. She was also told she could respond to the allegations in writing but that the meeting would go on without her if she chose not to attend.

Dragnet

Jan sent a letter in response to Greg telling him she wouldn’t attend the meeting. However, she didn’t address any of the accusations made against her. Greg held the hearing, and Jan neither attended nor refuted any of the accusations against her. As a result, Greg then discharged her.

Jan later filed a claim in federal court against the administrative office of the Illinois courts claiming that she was fired in retaliation for using FMLA leave. The trial court entered judgment in favor of the employer, and Jan appealed to the U.S. 7th Circuit Court of Appeals—which covers Illinois, Indiana, and Wisconsin.

To establish a claim for retaliation under the FMLA, Jan needed to put forth evidence to support a reasonable inference that she was fired because she took leave protected under the FMLA. She argued that the court could infer retaliation based on the timing of her suspension and termination. As she noted, she was suspended on the very same day she returned from her FMLA leave.

Get Smart

The 7th Circuit agreed that the timing of Jan’s suspension was suspicious. However, it noted that suspicious timing alone is rarely enough to support a retaliation claim. According to the court, she also needed to show that the administrative office’s explanation for the adverse action was a pretext for retaliation.

Pretext involves more than just faulty reasoning or mistaken judgment on the part of the employer. It’s a lie—specifically, a phony reason for taking some action. As the court explained, merely disagreeing with an employer’s articulated reasons doesn’t meet this standard.

According to the 7th Circuit, Jan wasn’t able to show pretext because she couldn’t show Greg—who ultimately decided to fire her—didn’t honestly believe the reasons listed in her disciplinary letter supported her discharge. The court noted that she didn’t argue that any of the stated reasons for her termination were false.

She even conceded that she had been instructed not to take other employees into the vault, thereby admitting to misconduct. Because she was unable to establish that Greg’s reasons for discharge were “unworthy of belief,” the court affirmed judgment for the employer. Tibbs v. Administrative Office of the Illinois Court, Case No. 16-1671 (7th Cir. June 19, 2017).

Mom Always Said, ‘Don’t Play Ball in the House’

We’ve said it before, but as Carol Brady knows, sometimes you have to say it twice. The best way to beat a charge of unlawful retaliation is to avoid it in the first place. You should have a written antiretaliation policy which clearly states you won’t tolerate retaliation in any form, and you need to train supervisors and managers on how to implement and follow the policy.

When an employee takes leave under the FMLA, or if a complaint of harassment or discrimination is being investigated, be sure to reference and rely on your antiretaliation policy. Finally, be sure to document performance issues when they occur. This will help to avoid a claim that you created a paper trail of performance problems only after the employee complained.

This article was written by Kelly Smith-Haley of Fox, Swibel, Levin & Carroll, LLP, and an editor of the Illinois Employment Law Letter. She can be reached at ksmithhaley@fslc.com

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This post originally appeared on HR Daily Advisor
Author: Kelly Smith-Haley, Fox, Swibel, Levin & Carroll, LLP