Executives Must "Keep Calm and Carry On" While a Suit is Pending

 Despite best efforts to avoid lawsuits, at some time or another, most employers find themselves defending themselves in court or at an administrative agency.  How executives behave while a lawsuit is pending however, can make the difference between the company being able to continue to function effectively or not - and wehther the employer may end up defending itself in more than one lawsuit. Of course, by now everyone knows not to retaliate against an employee for filing a lawsuit. But even firing an employee who has engaged in a terminable offense is made difficult when executives mouth off about the employee's lawsuit.  And this is true even if the executive has nothing to do with the decision to terminate! 

In Travers v. Flight Services. and Systems, Inc., decided December 12, 2013, the First Circuit Court of Appeals reversed a lower court's grant of summary judgment in favor of the employer.  In that case, the plaintiff had been lead plaintiff in a class action FLSA suit against the company.  The CEO, who was rather upset about the case, frequently made comments about Travers and the lawsuit to his supervisor and stated he wanted him fired.  Travers' supervisor was subsequently terminated.  Later, Travers' new supervisor terminated his employment after a customer complained that he had engaged in tip solicitation, a terminable offense. 

Although there was no evidence tying the termination to the CEO's comments to Travers' previous supervisor, because the big-mouthed actor was the CEO, and executive attitudes can permeate a company and become known to others, the Court determined that a reasonable jury could find that the employer would not have fired Travers absent retaliatory animus (Travers denied engaging in the conduct) and reversed the summary judgment. 

The simple lesson is that outside protected conversations with counsel, executives should not express any negative comments about an employee's filing of an action against the Company.  Instead, CEOs and other executives should stay calm and carry on the business at hand, as if the lawsuit were unknown to them - and that means no comments even to other managers.  This is the only way employers can protect themselves from a charge that legitimate work-related decisions are motivated by retaliatory animus.

But treating employees the same does not mean giving them a free pass.  If the employee continues behaviors for which he has been disciplined in the past, or engages in conduct that merits termination and there have been no evidence of any animus based on particpation in the lawsuit, employers may and should protect their employment environment and discipline/terminate the offending employee as it would anyone else.   (See Karatihy v. Commonwealth Flats Dev. Corp., 83 Mass. App. Ct. 253 (2013)(affirming summary judgment against hotel employee terminated for excessive tardiness after he served as lead plainitff in wage case.) 

Supreme Cout Gives Employers A Break -- Times Two!

June 24 was a good day for employers.  The Supreme Court, after much delay, handed down two opinions clarifying standards under Title VII.  In both cases limiting employees' ability to make Title VII claims.  

Not Every Superior Is A Supervisor

In the first case, the Supreme Court gave employers a break by limiting the number of people who can be personally liable in a Title VII discrimination suit.  Specifically, the Supreme Court held in Vance v. Ball State that a supervisor must be able to make hiring and firing decisions to make the employer liable.  In the same case, previously, the Seventh Circuit Court of Appeals had ruled that a supervisor must have the power to take formal employment actions against the victim (i.e., hire, fire, demote, promote, transfer, or discipline) -- as opposed to just having the ability to exercise direction over the victim's daily work.  Now, in a 5-4 decision, the Supreme Court adopted the Seventh Circuit test and held that an employee is a "supervisor" for purposes of vicarious liability under Title VII only if he or she is empowered by the employer to take tangible employment actions against the victim. You can find a copy of the Supreme Court opinion here.

Retaliation Needs To Be THE Reason the plaintiff was harmed

In University of Texas Southwest Medical Center v. Nassar, Nassar alleged that a job offer made to him was rescinded after he complained to the University about discrimination. The Fifth Circuit Court of Appeals had held that, to prove Title VII retaliation, Nassar need only show that the retaliation motivating the decision to rescind the job offer. The Fifth Circuit declined to require the plaintiff to show that retaliation was the "but for" reason he didn't get the job.

On appeal, the Supreme Court in another 5-4 decision, reversed the Fifth Circuit's decision and ruled that a plaintiff alleging retaliation under Title VII must prove that the employer's conduct did in fact cause the plaintiff's injury. 

Thankfully, this new clarity will allow plaintiffs and defendants to better assess their claims and allow lower courts to apply known standards to assess employer actions.  As always, employers should contact employment counsel immediately whenever an employee management issue raises any discrimination or retaliation issues.  

Learn From the Law Firm: Employers Must Curb Insensitive Comments

The Family Medical Leave Act (FMLA) provides eligible employees with up to 12 weeks of leave to care for a new baby or a family member with a serious medical condition.  But a Boston-based attorney claims that, after used his FMLA leave to care for his wife who was suffering from serious mental illness following the birth of their baby, his career was negatively impacted.  In mid-October, in Ayanna v. Dechert LLC, the attorney's FMLA retaliation claim survived the firm's motion for summary judgment in part because when the attorney was informed that he was being let go, a firm partner stated that his "personal" issues constituted one of reasons.

 

Although the U.S. District Court for the District of Massachusetts dismissed the associate attorney's sex discrimination claim (because there was evidence that women attorneys were treated similarly badly when they returned from family care leave), it refused to dismiss the FMLA retaliation claim because of the comment made and because, despite the law firms assertion that the termination resulted from his low billable hours, unlike the plaintiff, many of the other attorneys who were let go at the same time had received warnings for low hours the previous year and there was no evidence that all attorneys with similar hours were terminated.

The lessons are clear:  when it comes to retaliation claims under the FMLA or other protective statutes: employers must beware - even one insensitive comment that could be viewed as discriminatory can sink a case.  As this happened at a legally sophisticated employer, it can happen anywhere.  All managers, supervisors and HR professionals should be trained to avoid indiscreet comments that can force employers terminating employees to defend those decisions in front of a jury.  

Another lesson for employers can't be overstated -- employers must be consistent in their application of discipline.  If other employees (especially those who have not recently returned from FMLA leave) are guilty of the same infraction, they should be subject to similar discipline or their situation must be capable of being distinguished in some meaningful way.  As always, clear, uniformly applied policies provide the best defense.