Watching this case unfold...

[mightyalwayz]

In Sullivan v. Nat'l R.R. Passenger Corp., 170 F.3d 1056, 1058 (11th Cir. 1999) the court found that the jury's finding against employee on sexual harassment claim did not preclude it from finding for employee on his retaliation claim and rejected employer's argument that dismissal of harassment claim meant that employee lacked an objectively reasonable good-faith belief that harassment occurred; "For example, the jury could well have determined that the incident occurred but did not rise to the level of harassment prohibited by Title VII. Moreover, retaliation is a separate offense under Title VII; an employee need not prove the underlying claim of discrimination for the retaliation claim to succeed."

The [Title VII] opposition clause protects reasonable actions taken by an individual to protest perceived employment discrimination.

As the Seventh Circuit explained, limiting retaliation protections to those individuals whose discrimination claims are meritorious would "undermine[] Title VII's central purpose, the elimination of employment discrimination by informal means; destroy[] one of the chief means of achieving that purpose, the frank and non-disruptive exchange of ideas between employers and employees; and serve[] no redeeming statutory or policy purposes of its own." (Berg v. La Crosse Cooler Co., 612 F.2d 1041, 1045 (7th Cir. 1980))

 

[ElleMD]

Here's thing, the facts could go either way. It could be that employee was being unjustly targeted for performance issues on the basis of his race, he filed with the EEOC/state agency, and upon learning of this, his employer terminated him in retaliation for having made the report. IF the report was made in good faith, a claim for retaliation could survive as the reason the action was taken was due to the employee asserting his right under the law, even if the claim was eventually abandoned or found not to be discriminatory. Obviously, it is more difficult for the employee to "prove" the claim was made in good faith and had merit if it was voluntarily dropped, particularly when the employee is hardly adverse to litigation and had the guidance of an attorney.

OR, it could be that the employer had issues with his performance, and as a last ditch effort to save his job, he filed a claim of discrimination hoping it would shield him from being fired. That is not at all true and it is questionable that an internal only report of discrimination would be the basis for retaliation anyway. Courts are split on whether internal complaints are protected or only those made to regulatory agencies. Either way, the employee would have to show why the reason he was terminated was because of the filing of a claim of discrimination and not just the logical progression of an established course of discipline for poor performance.

Courts do not sit as a super personnel department and weigh whether or not the company made the right call in terminating someone and whether or not the employee's performance really was or was not acceptable.

 

[mightyalwayz]

Here's thing, the facts could go either way. It could be that employee was being unjustly targeted for performance issues on the basis of his race, he filed with the EEOC/state agency, and upon learning of this, his employer terminated him in retaliation for having made the report. IF the report was made in good faith, a claim for retaliation could survive as the reason the action was taken was due to the employee asserting his right under the law, even if the claim was eventually abandoned or found not to be discriminatory. Obviously, it is more difficult for the employee to "prove" the claim was made in good faith and had merit if it was voluntarily dropped, particularly when the employee is hardly adverse to litigation and had the guidance of an attorney.

OR, it could be that the employer had issues with his performance, and as a last ditch effort to save his job, he filed a claim of discrimination hoping it would shield him from being fired. That is not at all true and it is questionable that an internal only report of discrimination would be the basis for retaliation anyway. Courts are split on whether internal complaints are protected or only those made to regulatory agencies. Either way, the employee would have to show why the reason he was terminated was because of the filing of a claim of discrimination and not just the logical progression of an established course of discipline for poor performance.

Courts do not sit as a super personnel department and weigh whether or not the company made the right call in terminating someone and whether or not the employee's performance really was or was not acceptable.

By the employer's own admission, they were giving the employee an opportunity to improve his performance. However, and inexplicitly, they move to discipline him in the time shortly after his complaint. Their chronology of events is almost similary to Ledbetter v. Good Samaritan Ministries , (7th Cir. 2015).

Here's a catch-22: Perhaps the employee was insulating himself from termination by complaining, the event – in and of itself – triggered retaliation.

Courts may be split on the opinion of what constitutes protected activity, but the Seventh Circuit has made it clear that all complaints – meritorious or otherwise – count.

 

[ElleMD]

It isn't the merit of the complaint that protects it, but to whom the complaint is made. There is no dispute that complaints made to a regulatory agency are protected, although still are not a shield from termination. Complaints made only to the employer and not to an agency until after the termination, are less clear. Of course the obvious question either way is whether or not the decision maker knew of the complaint when the decision to terminate was made. The devil is in the details.

 

[army judge]

I suppose the reason we're apparently butting heads is not for my lack of intellectual curiosity, but for our inability to reach a consensus on the matter. And part of the reason for that is, by your own admission, your unfamiliarity with the case. I, in this instance, have an advantage of familiarity (apparently so much that the employee and I are one in the same) which is why I respectfully disagree with you.

When the employee's claim was moved to federal court, it was brought solely under retaliation; the race discrimination appeared to serve as nothing more than exposition as to the basis of the retaliation claim. Until it was confirmed that it could not be substantiated beyond the spectre of an allegation is when he rescinded it all together. Not that he was crying wolf, but that he apparently realized that the evidence couldn't substantiate it. There have been no new or alternate theories presented along the way. In fact, the employer tried playing that exact card in their opposition to the employee's motion to amend his complaint. However, in the order granting the amendment, the court stated that "[the] Plaintiff hasn't changed the basic fact pattern that has been alleged throughout this entire case." (i.e., He complained of the discriminatory actions of his immediate supervisor to the next-level supervisor, there was an adverse action taken against him by the next-level supervisor, within the span of a business week.) And while I'm sure there are other "nuances" that murk these waters, that's about as clear-cut as his pleadings have made it. He's not attempting to (nor does he even need to) prove the discrimination when the retaliation is both mutually exclusive and, supported by the evidence on record.

Cases develop over the course of litigation (I think we can both agree on that), especially so during the course of discovery. And, if and when the facts lead elsewhere, only a bullheaded attorney would insist a claim that is otherwise meritless (unless they're a spin master). In sum, the employee dropped the race discrimination altogether only because there were no facts to support it. In fact, the evidence suggested that the immediate supervisor was himself retaliating against the employee in response to several grievances that were (unwittingly) made on his behalf. Until the disclosure of these grievances (made way after the EEOC investigation, among other things), the employee relied on an objective basis for his alleged discrimination (employee-black, immediate supervisor-white) and on the good-faith basis conveyed that in his pleadings. His voluntary withdraw does not trigger a collapse of the entire case (because, firstly, race discrimination wasn't ever the "backbone" of his federal claim) but demonstrates an act of acknowledgement and due diligence; and, perhaps, not wanting to continue to implicate racism against someone who probably isn't racist but a run-of-the-mill jackass. If I were a judge, I would laud the employee for taking the initiative of something I didn't have to do at such a stage in the proceedings, especially because it is in the interest of judicial economy; which is what the judge seems to do in their order.

The purpose of my OP was to serve as nothing more than spark debate, and it has evidently served its purpose. I have no skin in the game for that litigant in as much as any of you. I admitted my interest seem to encroach on a personal vestment, however, some have made inferences on my interest that otherwise don't exist. Thank you for all the information you've shared.

You deny that you are Employee X, and in this post you admit to being Employee X.

Truth, elusive sweet truth.

We're not butting heads, as we've never been on direct PHYSICAL proximity to each other.

For all you know I'm some kid in southeast Asia pretending to be an old American judge dude in the southern US.

Heck, I might just be budding AI in the form of a "bot", trained to provoke or evoke comment from humans.

I post when I'm bored, interested, amused, concerned, or wish to troll.

I never reveal which.

 

[mightyalwayz]

You deny that you are Employee X, and in this post you admit to being Employee X.

Truth, elusive sweet truth.

We're not butting heads, as we've never been on direct PHYSICAL proximity to each other.

For all you know I'm some kid in southeast Asia pretending to be an old American judge dude in the southern US.

Heck, I might just be budding AI in the form of a "bot", trained to provoke or evoke comment from humans.

I post when I'm bored, interested, amused, concerned, or wish to troll.

I never reveal which.

If you're stating that my admission of being "Employee X" lies in the line "I, in this instance, have an advantage of familiarity (apparently so much that the employee and I are one in the same)" then I probably should've put on my sarcasm filter, as I was addressing your no-so-nuanced implication that I am him in your previous reply. (I thought that was apparent... *Kanye shrug*.)

Irony, apparently non-translatable to forum posts irony.

You seem to be oblivious to idioms because of course, we aren't in physical proximity to one another. [As I now start to consider this to be some form prank. Am I being punked?!] Based on that, I might believe that you are not from this country, this reality, or this planet.

Contrary to your assertion, you seem to be posting while sleepy, cranky, hungry (have a Snickers), or under duress, as your responses (and lack of intellectual sustenance therein) is telling. AND (very likely) you may simply be just your run-of-the-mill, socially-awkward troll from nowhere remarkable in need of the attention from "provok[ing] or evok[ing] comment from humans" (so no voluntary reveal needed).

Look what you've done. Brought me down to your level. You win, I guess.

*Sidenote* I find it interesting that instead of countering my arguments with facts, people then resort to posting their indifference (which is like the equivalent to a child screaming "You know, I didn't really care in the first place." Yet. You. Took. The. Time. To. Post. (even more revealing...)) when you could've simply stopped talking.

[Waiting on a feigned moral high-ground response.]

 

[ElleMD]

While army judge and I may not see eye to eye, rest assured that he isn't a troll. He is the only one here (that I know of) who actually has been a judge.

 

[mightyalwayz]

It isn't the merit of the complaint that protects it, but to whom the complaint is made. There is no dispute that complaints made to a regulatory agency are protected, although still are not a shield from termination. Complaints made only to the employer and not to an agency until after the termination, are less clear. Of course the obvious question either way is whether or not the decision maker knew of the complaint when the decision to terminate was made. The devil is in the details.

How about a bit more details then: The employee attempted (operative word) to complain to the next-level supervisor (this course of action meeting the requirements of their internal EEO policy), and was abruptly dismissed while in the commission of doing so. The next-level supervisor appeared, according to him, to already be in a mood, as she was about to face her supervisors under not-so-good circumstances (which is, perhaps, one of the reasons why she abruptly shut down the employee's complaining, effectively interfering with his exercise of protected activity). So, technically, while he wasn't able to articulate his claim as eloquently as he did, say, in his EEOC complaint, it still counts as complaining. (Right?)

I think the most telling of all (which hasn't been substantiated beyond the pleadings) is that the employee, during complaining, noted the disparity of the enforcement of rules between "certain managers." To which, she then went back into the meeting room of other employees and announced: "Okay, we're going back to black and white." However, he contends that the return to a rigid enforcement of the rules would only be relegated to him. And, based on the inexplicable and brisk events that subsequently occurred, not to mention the rules he was alleged to have violated, seem to give credence not only to her knowledge of him having complained (to whatever degree) but also to the overall theory that she retaliated but for having done so, given that she was at the center of the suspension/termination, among other things.

 

[mightyalwayz]

While army judge and I may not see eye to eye, rest assured that he isn't a troll. He is the only one here (that I know of) who actually has been a judge.

Has been. #telling

I don't want to stoke the flames any further, I just want to get back to unpacking this case, if I can.

 

[mightyalwayz]

.

How about a bit more details then: The employee attempted (operative word) to complain to the next-level supervisor (this course of action meeting the requirements of their internal EEO policy), and was abruptly dismissed while in the commission of doing so. The next-level supervisor appeared, according to him, to already be in a mood, as she was about to face her supervisors under not-so-good circumstances (which is, perhaps, one of the reasons why she abruptly shut down the employee's complaining, effectively interfering with his exercise of protected activity). So, technically, while he wasn't able to articulate his claim as eloquently as he did, say, in his EEOC complaint, it still counts as complaining. (Right?)

I think the most telling of all (which hasn't been substantiated beyond the pleadings) is that the employee, during complaining, noted the disparity of the enforcement of rules between "certain managers." To which, she then went back into the meeting room of other employees and announced: "Okay, we're going back to black and white." However, he contends that the return to a rigid enforcement of the rules would only be relegated to him. And, based on the inexplicable and brisk events that subsequently occurred, not to mention the rules he was alleged to have violated, seem to give credence not only to her knowledge of him having complained (to whatever degree) but also to the overall theory that she retaliated but for having done so, given that she was at the center of the suspension/termination, among other things.

*Edit* I think the retaliation occurred instantly when the next-level supervisor dismissed the employee, as it can be construed as interfering (as I previously inferred) pursuant to 42 U.S.C. § 12203(b).

 

[mightyalwayz]

Probationary periods for new employees are typically 90 days. In the employer's case, if they were genuinely giving the employee an "opportunity to improve his performance" it would've been reasonable to allow at least 30 days before taking action against him. However, it appears from the above-mentioned chronology, he wasn't even given a week. Similarly, it's not like his alleged violations even amounted to such egregiousness that an exception be taken. After reasonably refuting much of them and given the implication from the labor relations manager that at least some of the allegations were "a little iffy," the facts don't add up to them enacting the suspension/termination unless the retaliatory motive is also considered.

 

[hrforme]

honestly you are way over invested in this specific case if it's not closely related to you personally somehow-- you might be better served to look at other cases out there rather than focusing so deeply on this one. What is "reasonable " to you may not be reasonable to others (jury/attorneys/judge/employer) and honestly every one of these types of cases depends on very specific details . And in the end there are generally going to be some that disagree from both sides. You at this point aren't going to change anyone's minds out here nor are you going to get much more interaction I suspect unless someone new comes along. Most of us do have other responsibilities of actually working in HR/legal positions.

 

[mightyalwayz]

honestly you are way over invested in this specific case if it's not closely related to you personally somehow-- you might be better served to look at other cases out there rather than focusing so deeply on this one. What is "reasonable " to you may not be reasonable to others (jury/attorneys/judge/employer) and honestly every one of these types of cases depends on very specific details . And in the end there are generally going to be some that disagree from both sides. You at this point aren't going to change anyone's minds out here nor are you going to get much more interaction I suspect unless someone new comes along. Most of us do have other responsibilities of actually working in HR/legal positions.

I get your assessment of my over-investment in this case. Maybe it's such because I'm examining it through the eyes of a juror. Who knows.

I am reading other cases; again, this one piqued my interest over the others. However, based on your further assessment of my interactions on here, perhaps it is time to let it go.

Glad you took time from your responsibilities to make me aware of these things. Thank you.