Thursday, September 22, 2022

“Pretextual investigation” dooms employer’s defense to ex-employee’s retaliation claim

An employee, Joseph Canada, uses his cell phone to solicit sex from prostitutes during work hours. His employer, Samuel Grossi & Sons, discovers the text messages and terminates the employee for violating its policies against "[u]nlawful conduct which adversely affects the employee's relationship on his/her job, fellow employees, supervisor and/or damages the Company's property, reputation or goodwill in the community" and "[i]mmoral or indecent conduct."

The employee then sues for retaliation, claiming that the termination was in retaliation for filing another lawsuit the month prior claiming discrimination and FMLA violations.

The district court dismissed the retaliation claim, stating that "[n]o reasonable jury could conclude that defendant's proffered nondiscriminatory and nonretaliatory reason for terminating plaintiff's employment was pretextual."

On appeal, however, the 3rd Circuit concluded that the reason for the termination is irrelevant if the investigation that leads to the discovery of the evidence that causes the termination was pretexual in and of itself.

What did this pretextual investigation look like? The company needed to move the employee's locker because it blocked a security camera. Despite using a forklift, the company emptied its contents to make it easier to move. Inside it found a cellphone, which looked like a company-issued phone. To determine ownership, Grossi's HR Director, Elena Osorio, guessed the password on the first try and then searched the phone by reviewing more than a year of text messages to "find out if it was a company phone." This was the only instance Osorio could ever recall in which an employee's locker or phone was searched.

Here's the Court's ultimate conclusion.

Despite the lack of a coherent rationale for searching the phone, Osorio searched through more than a year's worth of personal text messages before discovering the messages for which Canada was allegedly fired. The breadth of this search alone undermines the plausibility that Grossi was trying to see if the phone belonged to the company. As we have explained, a jury could find that reading text messages from this far back in time is more suggestive of a search to find an excuse to fire Canada in retaliation for his protected activity. 
There is also evidence to support a finding that Grossi treated other employees more favorably. For example, Osorio testified that she was unaware of any other such searches of company lockers and had never searched any other employee's cellphone or personal items. Moreover, an argument can be made that the lockers did not require emptying before being moved, as alleged by Grossi, since a forklift was used.

The takeaway: You can legally terminate an employee who engages in protected activity based on that employee's workplace misconduct; you cannot, however, create a false pretense for the discovery of that misconduct. Pretext is pretext, both in the reason for termination and how that reason is uncovered.