retaliation

Is it Retaliation to Fire A Supervisor For a Fabricated Sexual Harassment Report?

Posted on June 28, 2017

The Situation: One of your supervisors reports that another employee has been sexually harassing several women working under him. Your HR director interviews each of these women and none back up this story. You then terminate the reporting supervisor based on her false report. Is this retaliation in violation of Title VII?…

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FMLA Retaliation Claim Even Where Actual Decisionmaker Didn’t Know About Use of Leave?

Posted on May 3, 2017

The Situation: An employee requests and is approved for FMLA leave based on a mental health condition.  While she is out, she accumulates a backlog of work. According to her supervisor, after she returns, she continues to have performance problems, including not meeting certain metrics and otherwise just not meeting his standards.  Based on a recommendation from her supervisor, upper management decides to demote the employee. When performance issues continue, the owner decides to fire her, without any knowledge of her use of FMLA leave. Can this employee still make a case for retaliation under the FMLA?…

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Calling Your Boss a Nasty Motherf**ker is Protected Activity?

Posted on April 26, 2017

The Situation: An employee has a problem with the way he has been treated by a supervisor and decides to share his disdain for him on Facebook—calling the supervisor a “nasty motherf**ker” and also saying “F*ck his mother” and “f*ck his whole family!”  Is this not a proper basis for termination?…

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Despite Serious Documented Performance Issues, Reference to Medical Leave May Mean FMLA Retaliation Claim

Posted on March 22, 2017

The Situation: An employee begins working as a sales consultant and from the beginning, has serious performance issues. She is given a number of warnings and even placed on an improvement plan. After she receives a final warning threatening termination if her performance does not improve, she submits a request for FMLA leave for some necessary surgery. The employer grants the request, but then terminates her soon after her return when it is clear her performance is not improving. But in the email sent up the chain recommending termination, the supervisor references the request for medical leave. Is this enough to support a retaliation claim, despite the clear (and well-documented) performance issues?…

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Firing Six Weeks After Charge Enough to Show Retaliation?

Posted on March 8, 2017

The Situation: An employee files an EEOC charge, claiming she was discriminated against based on her race. Because of some ongoing performance issues, you put her on a performance improvement plan three weeks later. Following the issuance of another written warning, you decide to terminate her, about six weeks after her charge was filed. Can she bring a retaliation claim based on the timing alone?…

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Can Firing an Employee for a False Sexual Harassment Claim Be Considered Retaliation?

Posted on February 15, 2017

The Situation: An employee lodges a number of complaints against a certain supervisor, claiming that he has made some offensive and inappropriate remarks of a sexual nature.  You interview some of the other employees who were purportedly present when these statements were made and none of them back up the complaining employee’s story. The supervisor also denies making the statements. You terminate the employee who made the complaints on the grounds that she has intentionally falsified a claim of harassment, in violation of your anti-harassment policy.  Can you face a claim of retaliation?…

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Can’t I Do Something About These Unfounded Discrimination Claims?

Posted on August 31, 2016

The Situation: Your employee brings a claim of discrimination against your company which you believe is completely meritless. If you pursue a malicious prosecution charge against her, could you face a claim of retaliation?…

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Could Drinking a Beer Constitute a Legitimate Use of FMLA Leave?

Posted on June 1, 2016

The Situation: You have an employee who has requested intermittent FMLA leave because of some mental health conditions, including depression and anxiety. One morning, the employee tells his supervisor that he needs to use some of this leave because he is experiencing severe stress and anxiety. Another employee reports to you that as the employee was clocking out, he ran into a coworker who was also leaving the jobsite and they made plans to have lunch. You send someone to the restaurant to confirm that the employee is there and he observes the employee drinking a beer. You end up firing the employee. Can he bring a claim of FMLA retaliation against you?…

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Get your story straight—employer’s change in explanation can be evidence of pretext

Posted on July 10, 2015

Yet again, an employer is burned by asserting inconsistent reasons for the termination of an employee.  In a recent case, the Eighth Circuit Court of Appeals found that an employee had presented sufficient evidence of an unlawful termination based on his use of FMLA leave where the employer offered differing stories as to the reason for the termination.  Hudson v. Tyson Fresh Meats, Inc., 2015 U.S. App. LEXIS 8479 (8th Cir. 2015).…

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Shifting explanations result in employer liability in Title VII retaliation claim

Posted on June 12, 2015

So a supervisor offers a couple of different explanations for action taken against an employee—how much does that matter? Maybe quite a bit, according to an opinion issued by Judge Jackson last week. See Mohammed v. Central Driving Mini Storage, Inc., Case No. 2:13cv00469 (E.D. Va. 2015). In this case, the court awarded a former employee of the storage company $150,730.19 in back pay and his attorneys’ fees and costs based on a claim that he was fired after he complained about having to work on his Sabbath.…

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