Retaliation occurs when an employee is punished for engaging in protected conduct. Examples of protected conduct may include communicating with a supervisor about discrimination, refusing to engage in practices that would result in discrimination, requesting an accommodation for a disability, and filing a complaint. A recent court decision serves as another reminder that making sure you follow policies and procedures can help if your company finds itself at the receiving end of a retaliation lawsuit.
The Protected Conduct
In a recent Kansas case, an employee sued her former employer, claiming it retaliated against her for making a complaint about a teambuilding exercise. One Friday, about a month after the employee began working for the company, she participated in a team-building game based off the game show “Family Feud.” The final question of the game asked employees to guess reasons your boss would give you a raise. The employee responded, “Get more education, get a certificate or degree.” Her answer was not the winning answer. Instead, the top answer to the question was: date your boss.
The following Monday, the employee reported to her supervisor that the top answer left her feeling uncomfortable. After sitting down with the employee, her supervisor sent her a follow-up email, detailing what they had discussed. The next Monday, the employee, her supervisor, and the manager running the Family Feud game all met with a company human resources representative. The HR representative took detailed, contemporaneous notesdescribing the meeting, including the employee’s statements in the meeting, and her response to feedback from her manager. Notably, everyone, including the employee running the Family Feud game, agreed that the “date your boss” comment was inappropriate, and the coordinator of the team-building exercise offered his apology.
At the end of that same month, the company terminated the employee’s employment. The termination was part of the company’s routine practice to review an employee’s performance in the first few months. In reviewing the employee, her manager had specific, objective examples of poor performance: the employee’s performance activity report showed the lowest sales numbers of the sales group (including two other new employees with no sales experience); the manager had often observed the employee on her cell phone, which violated company protocols; and the employee did not utilize proper engagement protocols with customers. Based on these examples, the company let the employee go.
The employee sued, alleging her termination was retaliation for complaining about the Family Feud game. But the court decided there was not enough evidence for the case to go to a jury. The employee then appealed, arguing that a jury should have decided the outcome of her claim. The Tenth Circuit Court of Appeals, the appeals court that oversees Kansas employers, rejected the employee’s argument.
The Tenth Circuit summarized the issue as one of “pretext.” In other words, even though the employer showed it had valid reasons for terminating the employee, were those reasons merely a cover for its true purpose of retaliation? Was the employee in truth fired for engaging in protected conduct? The court said no.
The court determined that the employee had only one piece of evidence to show the possibility of pretext: the temporal proximity between her complaint and the decision to terminate her. Remember that the termination was only two weeks after the employee’s complaint. But this closeness in time was not enough to overcome the overwhelming evidence that the employer followed proper procedure and had objective evidence to support the employee’s termination. For example, the employer was able to show the employee had the lowest sales numbers during her tenure. The court particularly called attention to the HR representative’s notes of the meeting regarding the employee’s complaint, finding that their accuracy was “never challenged” and provided specific details from the meeting that were hard to rebut.
In the end, the company made a lot of right moves, and the highlights are easy to see. The employee’s manager kept a written record, which he shared with the employee, of her complaint. The managers were able to admit that the “date your boss” comment was inappropriate, apologize for it, and learn from it. Remember that the goal of investigation and corrective action isn’t necessarily to terminate the wrongdoer, but to stop the inappropriate conduct, which is precisely what the employer did here. The HR representative’s detailed notes of the meeting was also a “best practice.”
Finally, the employer had standard procedures for reviewing performance, it followed those procedures, measured performance using objective criteria, and was able to show the employee did not live up to those objective and consistently applied criteria. Each of these factors convinced both the district court and the Tenth Circuit that the employer did not engage in retaliation.