Retaliation Claims–Beware the Trickle-Down Effect of the “Wishes of the King”

Generally speaking, when an employee clearly violates established policy, employers feel pretty comfortable terminating that employee, regardless of his past complaints of discrimination or about overtime, particularly where other employees have been fired for violating the same policy.  Not so fast, warns the First Circuit in Travers v. Flight Services & Systems, Inc., 2013 U.S. App. LEXIS 24706 (1st Cir. 2013).

Joseph Travers was a skycap employed by Flight Services & Systems, Inc., which provided services to JetBlue.  Travers filed a lawsuit alleging Fair Labor Standards Act (FLSA) violations against JetBlue in April 2008 and then amended the complaint to include his employer as a defendant about a year later.  The CEO of Flight Services was very vocal in his disdain for Travers and the legal action he had taken and, according to Travers’ supervisor, repeatedly told the supervisor to get rid of Travers and talk him into dropping the lawsuit.  In September 2010, while the motion to conditionally certify the FLSA case in Travers’ case was still pending, Flight Services received a complaint about Travers from a customer.  She reported that Travers had solicited her for a tip.  Flight Services’ employee handbook specifically bars the solicitation of tips.  Travers was first suspended pending investigation and then terminated by a general manager, with the approval of the Director of Human Resources.  Travers filed another lawsuit asserting retaliation.

The district court granted summary judgment to the employer, but the First Circuit vacated that finding.  The First Circuit rejected Flight Services’ argument that Travers could not prove retaliation because there was no direct evidence that the CEO (the one with the retaliatory animus) had any role in the decision to terminate.  Instead, because “the retaliatory animus resided at the apex of the organizational hierarchy . . . [a] rational juror could conclude that such strongly held and repeatedly voiced wishes of the king, so to speak, likely became well known to those courtiers who might rid him of a bothersome underling.”   Travers at * 7.

Furthermore, with regard to the stated reason for the termination (the violation of the policy regarding solicitation of tips), the First Circuit found that Flight Services improperly focused on the fact that evidence would allow a reasonable jury to conclude that Flight Services would have fired Travers for his violation of the policy even if he had never filed the FLSA lawsuit.  Instead, the inquiry should be whether a reasonable jury could conclude otherwise.  The First Circuit found that answer to be in the affirmative, pointing out that the retaliatory motive could have tipped the scales when the company decided that the policy violation warranted termination, particularly because the Director of Human Resources testified that when an accusation of solicitation is made, Flight Services considers the statements of both the employee and the customer and exercises judgment and discretion in reaching a determination as to discipline.  Additionally, the evidence related to the disciplinary action taken against others who engaged in similar conduct was not conclusive, as there were instances where others were not terminated for solicitation and other instances involving more egregious conduct (which was acknowledged by the wrongdoer) in which they were.

The take-away here is that an employer cannot entirely separate itself from improper motive, particularly when it comes from the top and is communicated downward.  Moreover, when an employee who has engaged in a protected activity violates even an established policy, employers are well advised to carefully consider its handling of similar violations and be mindful to eliminate any potential effect the retaliatory animus could have (or simply could be perceived to have) on the disciplinary action taken.