Wednesday, October 17, 2018

Timing of retaliation is key factor in reinstatement of employee's lawsuit


"See something, say something" is one of the most important elements of any workplace intent on stopping harassment. Employers are supposed to empower employees to report any harassment they witness, whether or not they are the target. Key to this idea is ensuring that employees who report harassment do not suffer retaliation as result. Retaliation of any kind will chill efforts of employees to say what they see.

With this background in mind, consider Donley v. Stryker Sales Corp. (7th Cir. 10/15/18) [pdf].

Kelley Donley, a manager for a medical technology firm, learned from co-workers that a manager had sexually harassed a subordinate. She exercised her right to file a harassment complaint against the manager with Stryker's human resources director. That complaint triggered an investigation, which resulted in the manager's termination.

Approximately one day after the manager's firing, Stryker launched an investigation into Donley. The investigation focused on an incident six weeks earlier at a team meeting in Colorado, in which it was alleged that Donley had photographed the intoxicated CEO of one of Stryker's vendors, and shared the photos with co-workers. The company fired Donley because "taking photographs of a valued partner while intoxicated was unacceptable."

The 7th Circuit ruled that the trial court had improperly dismissed Donley's retaliation lawsuit.

Donley's timeline … exposes inconsistencies and contradictions … of why Stryker began the investigation that ended with Donley's discharge. If the disputed facts are resolved in Donley's favor, a reasonable jury could interpret the suspicious timing as evidence (a) that one or both decision‐makers initially found Donley's actions in the Vail incident to be tolerable, and (b) that they decided only later, after she had filed her internal complaint, to use that incident as a pretext to fire her for retaliatory reasons.

What lessons can we learn from this case?

  1. Do not sit on allegations of workplace misconduct. If something is inappropriate today, the passage of time will not make it more inappropriate tomorrow. Indeed, waiting to take disciplinary action raises questions as to why you did not take action sooner. If protected conduct intervenes, the inference will be (as it was in this case), that retaliation motivated your ultimate (and untimely) decision to act.

  2. Adverse actions taken on the heels of protected activity is very dangerous. This is not to say that you can never discipline or fire an employee shortly after they engage in protected activity. Yet, if you are going to terminate an employee on the heels of any protected activity, you best have all of your ducks in a row. Employees who engage in protected activity aren't bulletproof from termination. But, you better be 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 this timeline.

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