Workers who raise complaints of discrimination face many on-the-job risks, including retaliatory termination. Sometimes, the retaliatory motive may be evident in the employer’s stated (bogus) reason for termination. Other times, the stated reason may be legitimate but the investigation that preceded it may have been the product of retaliatory motivations. In either circumstance, your employer’s “retaliatory animus” may be enough to give you a winning retaliation case. If you think you’ve been the victim of that kind of illegal employment practice, don’t wait to contact a knowledgeable New Jersey workplace retaliation lawyer to discuss your situation.
Here’s an example of what we mean. J.C. was a Black man who worked for a steel fabricator in southeast Pennsylvania. The employee suffered from herniated discs and arthritis in his back, a disability that caused him to pursue leave from work under the Family Medical Leave Act.
The employer fired the man in the summer of 2019. It claimed that it had found proof on his cell phone that he’d been soliciting sex workers while on company time and company property. The fired employee contended that the company fired him in retaliation for his complaints of race discrimination and disability discrimination, as well as using FMLA leave.
In a case like J.C.’s, you have to go through a three-step process. First, you have to establish that you have what the law calls a “prima facie” case of retaliation. That means having a sufficient showing that you engaged in “protected activity,” that your employer followed up with an adverse action, and that your protected activity caused the adverse action.
Once you’ve done that, the burden then shifts to your employer to present a legitimate, non-retaliatory reason for the adverse employment action. If the employer clears that hurdle, then the burden moves back to you again. This time, you must show that the legitimate reason the employer presented was merely a pretext for the true (illegal) motivation for the adverse action.
Retaliatory Animus Fueling an Employer’s Investigation
J.C., in seeking to establish pretext, attacked his employer’s motivation for the investigation and search of his cell phone. The trial court ruled in favor of the employer, concluding that the employer’s reasons for engaging in the investigation and search were irrelevant to determining whether or not the stated, legitimate reason was pretextual.
The Third Circuit Court of Appeals, whose rulings directly impact federal cases in New Jersey, Pennsylvania, and Delaware, decided that this was incorrect.
For workers seeking to pursue retaliation claims like this one, the importance of the ruling was when the appeals court stated that an “employer’s motivation for investigating an employee can be relevant to pretext.” At the summary judgment phase of a case, the range of evidence the court can consider is quite broad. You can use anything from your employer’s “antagonism” to “inconsistencies in the reasons” it gave for its adverse action to basically “any other evidence suggesting that the employer had a retaliatory” motivation fueling it when it took its adverse action.
When considering the evidence of pretext, federal courts are instructed to “look at the totality of the circumstances.” This broad analysis is necessary to protect workers because, as the appeals court noted, anything less “would not only immunize employers who retaliate against employees only after they stumble upon something that would justify their termination; it would also incentivize” retaliatory investigations.
As an example of what employers cannot do, the appeals court looked at a 2013 case from Illinois. In that case, an employee of the state gaming board helped a colleague file a discrimination charge. Not long after that, the board investigated the employee and after much digging, eventually found that he had violated an official policy, which the board used to fire the man.
The federal appeals court reviewing that case concluded that, even if the policy violation was 100% legitimate, the investigation was not. The employee’s evidence tended to show that that the board began investigating him not because it thought he was failing to follow official policies, but because the board desired to build a case for termination — a desire that sprang from the employee’s aiding his coworker in a discrimination lawsuit.
J.C.’s situation was similar. The employer contended that the search arose after it needed to move J.C.’s locker because it obstructed a surveillance camera. That legitimate basis only explained moving the locker; it did not explain opening the man’s locker and definitely did not explain opening J.C.’s password-protected cell phone and searching the contents inside it. When it dove into the phone’s contents, the employer had no reasonable suspicion that J.C. had violated any conduct policies.
Employers can retaliate against you in a number of ways. Sometimes, the retaliatory motives are “baked into” the internal investigation that precipitated your firing. However it happened, if your pursuit of your anti-discrimination or FMLA rights was what drove your employer, they may have violated the law. In these circumstances, the skilled New Jersey employment retaliation attorneys at Phillips & Associates are here to help you seek justice. To find out more, contact us online or at (833) 529-3476 to set up a free and confidential consultation today.