That’s It! You’re Fired! And no, this isn’t retaliation. Is it?

by Jay Marshall Wolman

The law and business are never as neat and clean as you might hope.  One of the toughest problems is when two things are happening around the same time and they start to implicate each other.

In law, we have the maxim “post hoc ergo propter hoc” (after this, therefore because of this) as a known logical fallacy; correlation does not imply causation.  The Fifth Circuit wrote:  “courts must not allow evidence of temporal correlation to serve as a substitute for science-based causation evidence.”  Huss v. Gayden, 571 F.3d 442, 459 (5th Cir.  2009)(relating to a claim that a medication caused cardiomyopathy).

In law, we also have a thing called a “temporal nexus”.  In Star Trek: Generations, a plot device was the “Nexus”, a temporal anomaly that permitted Captains Kirk and Picard to meet.  It is used, for example, to prove unlawful retaliation after engaging in protected activity.  See, e.g., Mickey v. Zeidler Tool and Die Co., 516 F.3d 516 (6th Cir. 2008).  A good summary of that case is here.    How can law have both?  Not easily.

Let’s say your employee, Pat, suffers an injury at work while trying to avoid a supervisor’s sexual advances and then files a workers’ compensation claim, files an OSHA complaint, files an EEOC complaint over the harassment, and seeks a reasonable accommodation.  And, let’s say Pat’s attorney also gets the idea Pat was misclassified, so FLSA claims are brought as well.  Disciplining, including firing, an employee for doing any of those things will typically constitute unlawful retaliation.  However, during the course of your investigation, you determine that Pat’s supervisor, Jan, admitted to the conduct, but that it was because Jan saw an opportunity to take advantage of Pat because Pat was going to be fired for poor performance/breaking rules/a real legitimate cause and hoped to trade sex for keeping the job.

Pat deserves to be fired.  [So does Jan.]  How do you fire Pat now without facing a host of additional charges?

Document. Document. Document.  And cross your fingers.

If Pat truly was to be fired, there should be records of whatever Pat did or didn’t do.  If there aren’t, get witness statements.  If you can’t get those, perhaps rethink firing Pat until you have new cause:  it might not be desirable to keep Pat, knowing what you know, but it may be worth the risk.  Pat also knows the jig is up, so perhaps it won’t happen again (on the flip side, Pat may feel overconfident, extra-protected in light of the retaliation claim prospects).

If you don’t have proof, change your procedures to ensure you can prove such a thing going forward.  However, you should ensure you are complying with state law privacy requirements.

If you do have proof, there are two options:  fire Pat now, and invite a temporal nexus retaliation claim, or wait to fire Pat and argue that your delay is not evidence that Pat’s misconduct wasn’t really worthy of termination (while you invoke the maxim “post hoc ergo propter hoc”).  And make sure the reason for termination is given and make it known you can prove it.

What if the misconduct happens after the employee engages in protected activity?  As Zeidler Tool demonstrates, the best thing is to hope that the misconduct isn’t immediately after the protected activity occurs.  The more time passes, the less that the temporal nexus alone will be sufficient proof of retaliation.

And, of course, review your employment policies, insurance policies, and severance agreements, as those will certainly come to bear.

 

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