Employment Law Daily Inconsistent treatment, modified reason for firing support revival of retaliatory discharge claim
Friday, January 8, 2016

Inconsistent treatment, modified reason for firing support revival of retaliatory discharge claim

By Kathleen Kapusta, J.D. A juvenile justice commission was inconsistent in its treatment of employees who mistreated juveniles, as well as in its treatment of the plaintiff who was fired after a second physical altercation with a female inmate, the Fifth Circuit found, vacating the grant of summary judgment against her claim that she was discharged in retaliation for asserting her rights under the FMLA and Title VII. Although the court affirmed summary judgment as to her pre-termination retaliation claims, Judge Reeves, in a partial dissent, argued that the majority erred when it found no prima facie case of pre-termination retaliation (Wheat v. Florida Parish Juvenile Justice Commission, January 5, 2016, Jolly, E.). Terminated, sued, and rehired. Eight years after the employee began working at a juvenile detention center, she was promoted to assistant director despite an incident in which she was disciplined for using excessive force against an inmate. She subsequently took FMLA leave to undergo surgery and was terminated for failing to return to work when her leave expired. She sued, and upon settlement of the case, she was reinstated at a lower-ranking position, but with the same salary. Several months later, the employee complained that a female inmate made inappropriate sexual advances toward her. Her request that the inmate be placed in administrative segregation was denied. Shortly thereafter, she was involved in another physical altercation with an inmate in which she threatened to “whip that bitch’s ass” and had to be restrained. She was discharged. She then sued, claiming she was fired in retaliation for having asserting her rights under the FMLA and Title VII. Reasoning that only “ultimate employment decisions” can constitute actionable retaliation, the district court granted summary judgment in favor of her employer. Janitorial duties. On appeal, the employee argued that the district court erred in applying a pre-Burlington standard to her claims. Examining three pre-termination retaliation claims under the current law, the court found that while she alleged that her assignment of “janitorial duties” upon her rehiring was retaliatory, there was no evidence of her duties, time spent, or the humiliation, if any, she suffered. Nor was there any indication she raised any objection to the assignment. Properly read, said the court, the record did not exclude the possibility that some janitorial duties were expected of juvenile detention officers generally and especially those who had just recently been hired or reinstated. Raise. As to her claim that she should have received a pay increase based on her performance evaluation, the court found that the evaluation clearly stated she was not authorized for a step increase and she did not object to or appeal the evaluation. Nor did she produce any evidence showing that any delay in her evaluation or the failure to grant her step increase—accompanied by a right of appeal that she did not exercise—constituted a materially adverse action. Transfer. Nor was the denial of her reassignment request away from a difficult inmate an adverse action as a matter of law, said the court, pointing out that the employee presented no evidence showing the denial made her job “objectively” worse. Termination. Turning to her retaliatory termination claim, the court observed that the employee was physically excessive toward a juvenile prior to her assertion of Title VII or FMLA rights and received only a written reprimand. As to the second incident, which occurred after she asserted her protected rights, the commission terminated her, claiming “No JDS officer had ever physically attacked a youth resident before [the employee] did, and, no JDS officer was allowed to remain in the Commission’s employ after any such attack.” After the employee offered evidence of other employees who were violent towards juvenile residents, but were not discharged, the commission revised its explanation for her termination, asserting, that her second “violent attack on a youth resident ... gave the Commission compelling grounds to fire her to protect the health and safety of the youth residents.” After providing its revised explanation, the commission did not make any reference to its original explanation. The grounds for the employee’s discharge related solely to the incident immediately preceding her termination, said the court, finding the commission offered no evidence or argument to distinguish this different treatment of the employee before and after exercising her protected rights. Thus, this inconsistent treatment raised fact disputes as to whether but for exercising her rights she would have been discharged. Citing additional evidence showing that the commission had been inconsistent in its discharge of other employees who mistreated juveniles, the court found that this mixed record constituted substantial evidence of a fact issue as to whether the employee’s discharge would have occurred “but for” exercising her protected rights. Dissent. Judge Reeves argued that to reach the conclusion that the employee failed to make out a prima facie case of pre-termination retaliation, the majority disregarded evidence and ignored the commission’s concession in the district court that she had made out such a case. Pointing out that when a person sues her former employer and succeeds, she may not be welcomed back with open arms, the judge observed that after years of dutiful service, the employee was fired while on FMLA leave; had to seek judicial relief to get her job back; reached an amicable settlement; and returned to work. Upon her return, though, she was assigned to janitorial duties for three weeks. “That’s retaliation as a matter of common sense,” declared Judge Reeves.

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