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Title VII Retaliation hypothetical

I present this hypothetical scenario of a Title VII retaliat mightyalwayz07/13/17
Dude, this is why I charge for consultations. cranky07/13/17
Hi Mighty, Honestly, you should not write briefs like thi guyingorillasuit07/13/17
I don't see a mention of the right to sue letter. If you' jackofspeed07/13/17
I can't offer any real help except for real-life anecdotal e qdllc07/14/17
I had a question about this too. If an employee is being sex fettywap07/14/17
mightyalwayz (Jul 13, 2017 - 8:51 am)

I present this hypothetical scenario of a Title VII retaliation claim to determine if: (a) based upon the following circumstances, (b) what has and has not been disputed as an issue of material fact, and (c) what has otherwise been substantiated by the admitted evidence, is it possible for the defendant to survive summary judgment?

I. Prima Facie Stage
A. Protected Activity: Employee made complaint to second-level management (ultimate decision maker) about the suspected disparate and discriminatory actions of his immediate supervisor.
*Note* While the defendant has conceded to the fact that a “meeting” occurred between the employee and second-level management, they, however, offer alternate context regarding the conversation therein. Moreover, although opposing council has adduced nothing more than a declaration from the second-level manager, curiously enough, it makes no mention of the meeting itself (primarily, in my opinion, due to the bevy of potentially damning implications for which the second-level manager would then have to address). Conversely, notwithstanding a few significant statements the employee clearly remembers being made by both parties, he has never averred word-for-word what was stated, as it quickly became a “heat of the moment” incident that resulted in him being dismissed by the second-level manager. However, he has remained consistent in such details and the overall fact that, notwithstanding, a complaint was lodged. Since this incident occurred in the presence of no other witnesses, and based on the foregoing, the matter essentially becomes relegated to a “he said, she said” scenario.

B. Materially Adverse Employment Action: A disciplinary write-up was the catalyst that resulted in an indefinite suspension, which was then commuted to the employee’s termination of employment.
*Note* Perhaps the most straight-forward and incontestable element in this matter, as it was evidenced by the write-up itself and termination letter.

C. Causation: (As you will notice, each element interplays with one another.)
• Suspicious timing – Depending on how you look at it, there are several key times: In the moments immediately thereafter the employee’s complaint, upon the first violation being “discovered” for the write-up (three (3) days), when the suspension was given (seven (7) days), and/or when the termination was given (six (6) weeks). Obviously, the shorter the timing the better, right?
• Oral or written statements from decision makers – In perhaps the most demonstrably potent example regarding timing and retaliatory intent: The second-level manager went and stated in front of a number of employee witnesses, “Okay, we’re going back to black and white.” This, again, occurring just after the employee’s complaint.
• The different application of rules to the complaining party – The aforementioned statement can be inferred as both an implicit acknowledgement of a departure from, and an ardent reinstatement of, a rigid enforcement of the rules. Not only was this a targeted enforcement reserved only for the employee, due-process was also supplanted when time came for the second-level manager to discipline the employee, most notably by the following: Although he was advised that he was being summoned to an “investigative” meeting, it was undoubtedly a disciplinary one when he was advised of his suspension at its conclusion. Thus, he would be disadvantaged when it came to, among other things, refuting the allegations. In sum, he was tried, judged and indicted before even entering the meeting. Moreover, evidence of prejudgment is substantiated in the form of an email between the second-level manager and supervisor dated the day before the “investigative” meeting.
• Inconsistent or shifting explanations – Second-level manager stated in their declaration that employee was given a last chance reprieve in the form of a Final Warning and Three-Day Suspension. However, based on the overall timing, among other things, they then seem to inexplicitly move to discipline him yet again within the course of, if not shortly subsequent to, serving the suspension.

II. Defendant’s Legitimate Business Reason: Defendant’s one and only reason for taking the adverse employment action was due to employee’s “extensive disciplinary history” (administrated by the very same supervisor employee was lodging complaint against; and whose "history" when juxtaposed against the several foregoing years of passng annual reviews, awards, positive customer feedback, and close to a dozen former supervisors who had no issue with the employee looks doubly suspicious).

III. Pretext: As stated, even though the defendant proffers the employee’s disciplinary history as their legitimate business reason, it is quickly undercut by the second-level manager’s statements in their declaration along with the actuating disciplinary write-up. Firstly, it is worth noting that the employee’s three-day suspension happened to be served within the course of a forced-labor weekend and, thus, alleged violations were found therein. Ergo, it can be inferred that the defendant was either disingenuous when “allowing the employee an opportunity to improve his performance by issuing him a second Final Warning and Three-Day Suspension,” by not even waiting for him to finish this suspension before moving to enact yet another one, or (by omission) they are lying and was otherwise “lying in wait” thereafter the employee’s complaint for a fortuitous opportunity to materialize. Moreover, the actuating disciplinary write-up itself, if the employee were given opportunity to properly refute it, contained allegations that were all but ignored prior to a reinstated rigid enforcement of the rules, of otherwise de minimis relevance, or could be contradicted by company policy.
In sum, it was an otherwise weak and contrived disciplinary action convieved in retaliatory animus that would not have come but for the employee's complaint which, thus, caused him to be terminated.


What do you think?

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cranky (Jul 13, 2017 - 8:56 am)

Dude, this is why I charge for consultations.

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guyingorillasuit (Jul 13, 2017 - 11:09 am)

Hi Mighty,

Honestly, you should not write briefs like this. This is painful and almost impossible to read. Whatever happens to this particular case, if you continue to write like this, you will find lawyering very difficult and frustrating. It's your job to explain clearly what happened. You seem to use a ton of long words and never actually explain anything. The only conclusion that I came to after reading this twice is that you have no case.

Try re-writing this from scratch. Write this as though you are explaining your case to a smart high school senior, without making him bored. If your case has any strong facts, they should appear in your introduction, so that the reader has context, and does not lose interest.

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jackofspeed (Jul 13, 2017 - 11:56 am)

I don't see a mention of the right to sue letter.

If you're in law school, ask your LRW Prof what it should look like.

An attorney generally always starts out with the jurisdiction. There are literally thousands of legal regimes in the US (many cities have their own Labor and Employment ordinances, on top of state and federal circuit destinations.)

As a rough answer as to your question, which I'll summarize as does this likely survive summary judgment-if there is a genuine question of fact, and it sounds like there is (since there is heated discussion that two people remember differently) then the court will generally decline to issue summary judgment if you meet the jurisdictional requirements.

Since this is an employment law claim grounded in Title VII you'll need to include some discussion of the purported complaint.

You also need to establish whether this is an at-will employee, covered by a bargaining agreement, or a government employee.

Is there evidence of either overt racial discrimination or a hostile work environment? What's the statute of limitations situation?

Again if this is for school ask your Prof, but my Professors emphasized and my experience confirms that it's better to assume the Judge is smart but lazy. If there is a clear bad act, lead with that.

In an at-will situation you have to show by a preponderance of the evidence that the Plaintiff was fired for a "bad reason". Being annoying to your bosses gets people fired all the time, with no recourse (although they might still get unemployment...it depends on the circumstances.)

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qdllc (Jul 14, 2017 - 7:15 am)

I can't offer any real help except for real-life anecdotal evidence.

IN SPITE OF how the law reads, in my area, you pretty much need to have a "smoking gun" just to have a shot of getting into court...and then the courts still try to back the employer.

Never take a Title VII matter to an employer without simultaneously filing a formal complaint with federal or state authorities...preferably through an attorney for both parties. Once a complaint is filed, any adverse action is presumed to be retaliatory...forcing the employer to prove it is not.

There is little to nothing to gain by being a "nice guy" and trying to work problems out in private.

Even when you have a prima facie case and the burden of proof should shift to the employer, it rarely happens absent irrefutable proof on your side.

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fettywap (Jul 14, 2017 - 9:44 am)

I had a question about this too. If an employee is being sexually harassed by a supervisor at work, is there any point in complaining over his head to the employer, or is it better to go straight to a charge of discrimination? I thought if the supervisor was doing it, legally the employer is considered to have knowledge of the action, so written notice isn't really necessary.

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