Classic Employer Retaliation: Building A Record To Justify An Employee’s Termination

Throughout the past twenty years, our wrongful termination lawyers in Marion County, Florida have fought for the rights of wrongful termination victims. Having decades of experience litigating wrongful termination cases, our wrongful termination attorneys in Ocala, Florida know that employees who complain about workplace discrimination are often targeted for retaliation. As the U.S. Supreme Court in Crawford v. Metropolitan Gov. of Nashville & Davidson County, 555 U.S. 217 (2009) explained, “fear of retaliation is the leading reason why people stay silent instead of voicing their concerns about bias and discrimination.”

When targeting employees for retaliation because they complained about workplace discrimination, employers seemingly have an inexhaustible supply of retaliatory weapons at their disposal. Perhaps the most favored employer retaliatory weapon is papering an employee’s personnel file with disciplinary actions or negative performance evaluations to justify the employee’s retaliatory termination. In doing so, employers manufacture a case against the employee that provides a pretextual cover for their retaliatory motive. In this article, our employment lawyers in Marion County, Florida explain how the alleged facts in Elgalad v. New York City Department of Education, 2024 WL 621617 (S.D. N.Y. Feb. 14, 2024) are illustrative of how a case is built against employees who complain about workplace discrimination.

Retaliation Lawsuit

In that case, a man named Elgalad brought a retaliation claim against his employer, the New York City Department of Education (the “DOE”), pursuant to Title VII of the Civil Rights Act of 1964 (“Title VII”). Title VII prohibits employers from retaliating against employees for complaining about workplace discrimination. Elgalad, who is Muslim and was raised in Egypt, claims that he was retaliated against for complaining about perceived discrimination towards him in the workplace.

Elgalad is employed by the DOE as a teacher. Elgalad taught at the DOE’s High School for Global Citizenship (“HGSC”) until 2016. In December 2014, Elgalad filed a discrimination complaint against an assistant principal of HGSC, Mbuyi. After lodging his discrimination complaint, Elgalad maintains that he was subjected to a series of retaliatory acts by the administration of HGSC. Elgalad contends that the retaliatory acts culminated in him being reassigned to teach as part of the Absent Teacher Reserve.

Employee Claims Targeted For Retaliation

In a letter dated June 1, 2015 that was added to Elgalad’s employee file, Mbuyi stated that he had determined that Elgalad had “committed an act of verbal abuse” against a student in October 2013 where Elgalad allegedly called a student “stupid.” In an Office of Special Investigations (“OSI”) form dated March 19, 2015, Mbuyi wrote that the “allegation was unsubstantiated,” and that “there is no evidence that [Elgalad] did in fact call the student stupid” but that he “could have possibly done so,” and that it “could easily be a miscommunication.” However, Mbuyi checked the box on the OSI form stating that “the allegation(s) of verbal abuse were substantiated.”

In October 2016, another assistant principal of HGSC, Hilaire, observed one of Elgalad’s classes and rated him “ineffective” in five categories. In December 2015, the principal of HGSC, Rochon, observed one of Elgalad’s classes and gave him low marks in three categories. In March 2016, according to Elgalad, Hilaire told him, “listen, you have to go and stop . . . you[r] [discrimination] . . . filing against Mbuyi.” Elgalad asserts that he responded that he would not cease pursuing this discrimination charge against Mbuyi. In March 2016, Rochon sent Elgalad six summonses for disciplinary conferences, all of which were scheduled for late March 2016.

On April 6, 2016, Rochon conducted an observation of one of Elgalad’s classes. On April 8, 2016, Rochon sent Elgalad two more summonses for disciplinary conferences. Also on that same day, Rochon issued four letters to Elgalad’s employee file, all of which conclude “this incident may lead to further disciplinary action, including charges that may lead to termination of your employment.” On April 19, 2016, after another conference in her office, Rochon issued another letter to Elgalad’s employee file with the same concluding sentence.

On June 22, 2016, Elgalad was served with charges against him to be adjudicated in a hearing before a DOE hearing officer. There were five charges against Elgalad, which included: (1) Elgalad allegedly called a student “stupid” in 2013; (2) Elgalad allegedly failed to maintain accurate time and attendance records; (3)-(4) two charges for arriving to work late; and (5) Elgalad allegedly questioned a student about whether she had provided Mbuyi with a written statement about Elgalad.

By letter dated November 3, 2016, Elgalad was reassigned to teach as part of the Absent Teacher Reserve. In this role, Elgalad receives the same compensation, but claims that he does not have classes or a school, and sometimes is assigned to a school that is far from his home.

“Build A Record” Against Employee

The DOE filed a motion with the trial court seeking dismissal of Elgalad’s retaliation claim. In moving for dismissal, the DOE argued that Elgalad’s “poor work performance” and “bad behavior” were the reasons for the various actions to which Elgalad was subjected. In denying the motion for dismissal, the trial court determined that “although a jury may conclude that much of the discipline [Elgalad] faced was for legitimate reasons, a jury could also reasonably find that the discipline was pretextual.” In support of its finding, the trial court reasoned that a “jury could conclude that because Rochon and Mbuyi did not like that [Elgalad] was complaining about discrimination, they waged a campaign to build a record against him that could lead to termination of his employment.” “A campaign,” the trial court observed that in fact ended with [Elgalad]’s reassignment” to the Absent Teacher Reserve.

Marion County Wrongful Discharge Lawyers

Based in Ocala, Florida and representing workers throughout Florida, our wrongful termination attorneys in Marion County, Florida have litigated wrongful termination cases in Florida courts for more than two decades. If you have been wrongfully terminated or have questions about your rights as a wrongful termination victim, please contact our office for a free consultation with our wrongful termination lawyers in Marion County, Florida. Our employee rights law firm takes wrongful termination cases on a contingency fee basis. This means that there are no attorney’s fees incurred unless there is a recovery and our attorney’s fees come solely from the monetary award that you recover.