A recent decision out of the Eleventh Circuit demonstrates how easily an employer’s purportedly negative comment made closely in time to an employee’s legally protected activity can form the basis of an allegation that the employer unlawfully retaliated. Jacomb v. BBVA Compass Bank, No. 18-11536 (11th Cir. 11/4/19) (unpublished).
Jacomb was hired as a Senior IT Project Manager for BBVA Compass Bank (BBVA). A few years later, she received a “below expectations” performance evaluation noting that she lacked team work abilities. When bonus time came, Jacomb’s performance evaluations contributed to a lower bonus than she was used to. Jacomb filed a charge with the EEOC alleging race-based harassment by her supervisors.
Jacomb brought a retaliation claim under Title VII, alleging in part that her supervisor commented at the bonus meeting that she was not a “team player” in response to her filing an EEOC charge. The court rejected this argument, relying on Jacomb’s performance evaluations which predated the charge and cited the perceived problems with her teamwork. And even if Jacomb could show that the “team player” comment referred to her EEOC charge, there was no evidence that the supervisor making the statement was involved in the employment action at issue, the court found. (As a side note, the court also assumed that a “relatively high-level manager” would know about an EEOC charge filed by one of the employees he or she supervises.)
In contrast to Jacomb, the U.S. District Court for the Western District of Tennessee recently found in favor of an employee who alleged that her employer made negative comments in connection with its learning that she filed an EEOC complaint. Chapman v. Olymbec USA, LLC, No. 2:18-cv-02842 (W.D. Tenn. 11/1/19). There, the employee, Chapman, alleged that she worked for Olymbec as a Property Manager when she requested an accommodation to treat her bipolar disorder and depression; Olymbec denied the request. Chapman also alleged that she then asked to leave work early without disclosing that she was leaving to file a charge with the EEOC. While at the EEOC, Chapman ran into a coworker. Olymbec allegedly fired Chapman the next day for “breaching [her employer’s] trust” by going to the EEOC and filing a charge.
Olymbec later responded that it terminated Chapman for lying about the reason she left work early, namely that she claimed she had to pick up her children. Nevertheless, the court denied Olymbec’s motion to dismiss the lawsuit, finding that Chapman had sufficiently brought a claim of retaliation under the ADA. (The court also noted a “plausible inference” that Chapman was qualified for the position from which she was fired because she had been working there for three years before she was terminated.)
What’s the moral of the story? Employers should not reprimand employees for, or discourage employees from, filing complaints of discrimination, retaliation, or otherwise engaging in protected activity. Implementing practices and including provisions in handbooks and other employment policies that prohibit employers from retaliating or interfering with rights to engage in protected activity are some of the ways employers can protect themselves from liability.