Did firing remark betray retaliation?
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Did firing remark betray retaliation?

Based on the facts presented in the scenario below, how do you think the court ruled on this employment-law case?

“So did you not say, in a conversation with the manager you were replacing, that you understood my client had done something she should have been fired for?” plaintiff’s lawyer Justin Case asked supervisor Brad Hurley.

“I said I’d heard something like that,” Brad corrected. “I never said I believed Ms. Wolfe should be fired.”

“And yet within two months after you took over the department, you dismissed her,” Case said. “The reason given was that her position was eliminated. “But wasn’t the real reason that she had filed a sexual harassment complaint against another manager? Weren’t you in fact retaliating against her?”

Position eliminated
“Not at all,” Brad protested. “We documented the fact that Tanya’s position had become unnecessary, given the changes in our business.”

“But didn’t you then go out and hire two more employees to do work quite similar to what my client had been doing?” Case asked.

“No,” Brad said. “Those hires are doing different kinds of work.”

“So you say,” Case said. “But tell me, what were you referring to when you talked about something that might get Tanya fired? Did you mean her harassment complaint?”

“I’m not sure now what I was referring to,” Brad said.

“The person you were speaking to has no doubt you were referring to Ms. Wolfe’s complaint,” Case said.

Did the employee win her retaliation case?

The decision
Yes, Tanya won an important preliminary victory when a federal appeals court said her case should be heard by a jury.

The court leaned heavily on supervisor Brad’s comment about the employee having done something she could be fired for. Although the company argued that this comment was ambiguous, the court said it didn’t see what else Brad might have been referring to other than her sexual harassment complaint.

And if the manager who eventually did fire her was already talking about her firing when he took up his position, and over something she had a legal right to do, that suggested the “elimination of her position” was a pretext for retaliation.

The lesson
Once an employee has engaged in “protected activity” – complaining of harassment or discrimination, testifying in someone else’s discrimination case and the like – supervisors must be very careful what they say about the person. Remarks that could be construed as hostile may leave you in a tough position if you later have to take adverse action against the person – even for good reasons.

Cite: Egan v. Freedom Bank, No. 10-1214, 7th Cir., 10/6/2011. Fictionalized for dramatic effect.

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