By Brandi O. Brown, J.D. Noting that the Third Circuit has recognized a perception theory for nearly identical anti-retaliation provisions under the ADA and the ADEA, a federal district court in Pennsylvania entertained a similar argument in a Title VII case brought by a fired transit employee who alleged he was fired because his manager perceived that he was engaging in protected activity. A genuine issue of material fact existed as to whether the manager had that perception. Summary judgment was denied in part (Braddock v. SEPTA, March 28, 2016, O'Neill, T.). Trailer incident. Although the plaintiff worked for the employer for decades with a clean disciplinary record, a single incident in 2011 apparently snowballed into his termination. Specifically, one evening in April 2011, he was found to be in a female bunkhouse and was reported by two female employees to whom he denied entry into the trailer. The employee was also asked to submit a report. Racism complaint? The day after he submitted the report, the employee arrived to work to find a message to call his supervisor. The parties disputed the substance of that call. The employee claimed he told his supervisor that he was the "only minority." According to the supervisor, however, the employee called him "racist," accused him of being out to get him, and told him that he had not had any problems with his prior supervisors. The employee, however, has denied calling his supervisor racist. The supervisor also testified that the employee yelled and screamed at him, although the employee testified that he spoke loudly because of the noise in the workplace. Termination and reinstatement. According to the employee, he went the next day to the employer's EEO department to complain of discrimination. Approximately ten days after the employee's conversation with his manager, the manager recommended his termination. The employee appealed and ultimately was reinstated. He filed a Title VII retaliation claim against the employer and Pennsylvania Human Rights Act (PHRA) claims against all defendants, including two supervisors. The defendants filed a summary judgment motion that was denied and, after discovery was completed, filed another. Protected activity? Primarily, the defendants argued that the employee's retaliation claim should fail because he did not show he had engaged in protected activity. They asserted that his telephone conversation with his manager did not constitute protected activity because the employee did not have an objectively reasonable belief that he was opposing unlawful conduct. He was inconsistent in his testimony about why he made the complaint to his manager. Moreover, the defendants argued, there was no factual support for his testimony that the manager frequently called him to his office. Manager's perception was key. Interestingly, the employee did not address those concerns but, instead, argued that it was the manager's perception that he had engaged in protected activity that mattered. Indeed, the court noted that the Court of Appeals had recognized under the ADA and ADEA a "perception theory for retaliation claims." Those anti-retaliation provisions, the court noted, were "nearly identical" to the one in Title VII. Essentially, the employee argued that he was fired because the employer thought he had engaged in such activity, regardless of whether or not he had. Thus the "relevant perspective" was the manager's understanding of the call. His account of the call was consistent. He testified and wrote in the employee's termination letter that he believed the employee had called him a racist and told him that he was being treated differently than white yard masters. He also testified that the employee stated that he was working in a hostile environment. Moreover, the manager testified that he reported the conversation to the EEO department. That raised a triable issue of fact on the manager's perception. Causation. Although the employer argued, with regard to the phone call, that the employee could not establish causation because the undisputed reason for his discharge was his use of the woman's trailer, the employee presented evidence of causation. Specifically, he presented the termination letter, which specifically noted that one of the reasons he was fired was that he had complained that he had been subjected to racism and a hostile work environment by his supervisor. The employee also presented evidence that the manager of employee relations had recommended suspension, rather than termination, and argued that the disproportionate disciplinary measure was in response to his protected activity. He also argued that temporal proximity supported a causal connection. The court concluded that the evidence as a whole supported causation, it also supported the employee’s pretext argument. However, as to the EEO complaint, the court concluded that it could not serve as the basis for the employee’s retaliation claim because he could not show that it was a but-for cause of his discharge. PHRA claims proceed. Summary judgment was denied on the PHRA claims against the individuals supervisors. Though they argued that they could not be held individually liable under the state law for aiding and abetting, the court noted that both were the employee’s direct supervisor and one initiated his termination, while the other made the ultimate decision. The outcome of their claims depended on the outcome of the disputed Title VII retaliation claim, so summary judgment was inappropriate, the court explained.
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