Labor & Employment Law Daily Employer can’t condition continued employment on release of discrimination claims
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Monday, May 4, 2020

Employer can’t condition continued employment on release of discrimination claims

By Ronald Miller, J.D.

The question in this case was not whether the employer could have fired the employee based on his violation of the company’s workplace violence policy, but rather whether it would have fired him in the absence of his protected activity.

Observing that the case law in the Eleventh Circuit makes it clear that an employer may not respond to a claim of race discrimination by conditioning continued employment on a release of claims and firing the employee for refusing to do so, the appeals court found enough evidence in the record to support the employee’s claim that that was precisely what his employer did. The appeals court observed that the employer added the release to a last chance agreement as a condition of continued employment only after the employee made a protected complaint to an employee hotline. Accordingly, the appeals court reversed a district court’s grant of summary judgment in favor of the employer on the employee’s Title VII retaliation claim. However, summary judgment was affirmed on the employee’s race discrimination claim (Knox v. Roper Pump Company, April 30, 2020, Marcus, S.).

Domestic dispute. In September 2015, the employee, an African-American male, got into a fight with his daughter in their home. During the fight, the employee struck his daughter. The daughter worked at the same facility, but for an affiliated company. She went to work the next day and complained to the employer’s HR department. Because violence against a coworker violated the employer’s workplace violence policy, the employee was suspended.

Discrimination complaint. Shortly after his suspension, the employee called the employer’s ethics hotline to complain that he believed that he was being discriminated against on account of race because white employees who had violated the workplace violence policy had been allowed to continue working.

Thereafter, the employer advised the employee that he could keep his job if he completed anger management classes while on unpaid leave. But when the employee was presented with a written agreement, it included a release of all claims against the employer—including Title VII claims. The employee refused to sign the agreement with the release and the employer refused to remove it, and fired him.

The employee sued the employer alleging race discrimination and retaliation in violation of Title VII. Following discovery, the parties filed cross-motions for summary judgment. A magistrate recommended granting summary judgment to the employer on the employee’s race discrimination claims, but recommended denying summary judgment on the retaliation claim. Upon review, the district court granted the employer’s motion for summary judgment on both claims.

Retaliation claim. A plaintiff alleging retaliation in violation of Title VII must establish a prima facie case by showing that (1) he engaged in statutorily protected activity, (2) an adverse employment action occurred, and (3) the adverse action was casually related to the plaintiff’s protected activities.” To rebut the presumption of retaliation, the employer must articulate a legitimate, non-retaliatory reason for the challenged employment action. Then the employee must come forward with evidence to allow a reasonable factfinder to conclude that the proffered reason was pretextual.

Here, it is undisputed that the employee’s complaint of racial discrimination was a protected activity and that his termination was an adverse employment action. The only question was whether he offered enough evidence from which a reasonable juror could conclude that his protected activity was casually linked to his termination.

The appeals court determined that the employee offered evidence, if credited, from which a reasonable factfinder could conclude that the employer added the release of claims to the last chance agreement (LCA) because he complained about race discrimination, that he would have signed the LCA if it did not include the release, and he would not have been fired had he signed the LCA. Taking these facts in the light most favorable to the employee, a reasonable juror could find that he would not have been fired had he not complained of race discrimination.

Employer response to complaint. The Eleventh Circuit observed that its case law confirms that a plaintiff could establish a causal connection between the protected activity and termination when an employer responds to an employee’s discrimination complaint by conditioning the employee’s continued employment on a release of claims and then fires him for rejecting the release.

The question in this case was not whether the employer could have fired the employee based on his violation of the company’s workplace violence policy, but rather whether it would have fired him in the absence of his protected activity. The record raised a genuine issue of material fact whether the employee would have been fired had he not complained. As a result, the appeals court reversed the district court’s grant of summary judgment in favor of the employer on his retaliation claim.

Race discrimination claim. However, the employee did not fare as well on his race discrimination claim. A Title VII plaintiff claiming race discrimination may meet his prima facie burden by offering a “comparator”—a similarly situated individual outside of the protected class who was treated differently than the plaintiff. In Lewis v. City of Union City, Georgia, the Eleventh Circuit, sitting en banc, recently clarified that the comparator must be “similarly situated in all material respects.”

Here, the appeals court found that the comparators offered by the employee were not similarly situated in all material respects. A white employee involved in a domestic dispute with his ex-wife did not involve two employees employed by the employer. Two employees involved in a fight at work were both immediately terminated but rehired later out of business necessity. Moreover, the incidents involving the three comparators all occurred under different supervisors. Consequently, the district court did not err in granting summary judgment to the employer on the employee’s race discrimination claim because his proffered comparators were not similarly situated in all material respects.

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