Piercing The Employer’s Disingenuous Retaliation Defense: The Decision-Maker Did Not Know Of Complaint

Having litigated employment discrimination cases for more than two decades, our wrongful termination lawyers in Citrus County, Florida know that many employers exploit judicially-created rules that provide them with a factual basis for obtaining dismissal of employment discrimination claims. Perhaps the most fertile area of employer exploitation involves judicially-created rules that require employment discrimination victims to prove an employer’s knowledge of some act or event as a prerequisite to establishing employer liability. As employers generally have unilateral control over acknowledging what knowledge their employees possessed, employers often simply deny they possessed the requisite knowledge.

In the retaliation context, judicially-created rules requiring employer knowledge as a prerequisite to establishing employer liability often control the outcome of retaliation cases. As part of an employee’s burden to establish a prima facie case of retaliation, most courts have adopted the judicially-created rule that the employee must prove that the person who made the challenged employment decision knew the employee had lodged a discrimination complaint when the challenged employment decision was made. If the employer’s unilaterally designated decision-maker denies having knowledge of the employee’s discrimination complaint when the challenged employment decision was made, the employee cannot establish a prima facie case of retaliation and the employee’s retaliation claim fails as a matter of law.

Employer Defenses To Retaliation Claims

As a result of this judicially-created rule, employers have come up with three types of factual defenses to retaliation claims. First, the employer simply selects an employee who had absolutely no involvement with the employee’s employment, including the employee’s discrimination complaint, as the unilaterally designated decision-maker. In other words, the employer selects as the decision-maker an employee who is indisputably without knowledge of the employee’s discrimination complaint and insulated from the retaliatory animus. Second, the employer simply declares that the challenged employment decision was made—but was not acted upon or disclosed to the employee—before the employee lodged a discrimination complaint. Finally, the employer simply denies the unilaterally designated decision-maker had knowledge of the employee’s discrimination complaint when the challenged employment decision was made. Under each defense, the employer is exploiting the judicially-created rule requiring employees to prove the decision-maker’s knowledge of the discrimination complaint when the challenged employment decision was made to provide itself with a factual basis to obtain dismissal of the employee’s discrimination claim.

In this article, our wrongful termination lawyers in Citrus County, Florida explain how the alleged facts in Hicks v. SSP America, Inc., 490 Fed.Appx. 781 (6th Cir. 2012) illustrate how retaliation victims can pierce an employer’s contention that the decision-maker had no knowledge of an employee’s discrimination complaint.

Retaliatory Discharge Lawsuit

In that case, a woman named Hicks brought a retaliation claim against her former employer SSP America, Inc. (“SSP”), pursuant to Title VII of the Civil Rights Act of 1964 (“Title VII”). Title VII makes discrimination against employees on the basis of race, national origin, sex, or religion an unlawful employment practice. In order to protect discrimination victims, Title VII prohibits employers from retaliating against employees because they complained about perceived discrimination on the basis of race, national origin, sex, or religion. Employees are protected from retaliation when they make internal discrimination complaints and discrimination complaints to the U.S. Equal Employment Opportunity Commission (“EEOC”). Hicks claims that she was fired in retaliation for making race and sex discrimination complaints to the EEOC.

Hicks, who is African-American, worked for SSP as an Assistant Manager at its restaurant. Prior to her suspension and subsequent termination, Hicks was never disciplined during her employment. In the year before her termination, she received two merit pay increases and a positive evaluation. According to Hicks, she told the restaurant’s General Manager, David, that she was interested in becoming the general Manager after being told by David that he planned to leave SSP, and Hicks further asserts that David began training her for the job.

In January 2008, the Senior Director of Operations hired a man named Barnes as the new General Manager. Prior to his resignation on March 6, 2008, David helped train Barnes in the General Manager role.

On February 7, 2008, Hicks filed a complaint of discrimination with the EEOC alleging that SSP failed to promote her to General Manager because of her sex and race. The EEOC mailed a copy of the complaint to the General Manager at the address for the SSP restaurant where Hicks worked. On February 19, 2008, the Senior Director of Operations suspended Hicks for allegedly violating SSP’s cash-handling policy by allowing other employees to use her Micros card—a swipe card with identifying employee information and used by individual employees to access the cash register system—to log in to cash registers at the restaurant.

On February 22, 2008, Hicks filed a second complaint of discrimination with the EEOC alleging her original race and sex discrimination claims and an additional claim related to her suspension. On March 6, 2008, the Senior Director of Operations terminated Hicks’ employment for violation of SSP’s cash-handling policy.

Requisite Knowledge Inferred

The trial court dismissed Hicks’ retaliation claim. In dismissing Hicks’ retaliation claim, the trial court relied on testimony from the Senior Director of Operations that “he had neither seen nor heard of the filing of the charges with the [EEOC] when he decided to suspend Hicks, when he decided to terminate her, and when he actually terminated her.” On appeal, the U.S. Sixth Circuit Court of Appeals reversed the trial court’s dismissal and reinstated Hicks’ retaliation claim.

Unlike the reversed trial court, the Sixth Circuit found there was evidence “in Hicks’ favor supporting a contrary inference.” The appellate court pointed out that David testified that Barnes told him just before David left his employment with SSP, “I believe Hicks is filing for discrimination.” When asked whether he had seen Hicks’ discrimination complaint to the EEOC, David testified that he “remembered seeing it.” As David resigned on March 6 and Hicks was terminate effective March 6, “David and Hicks resigned and were terminated, respectively, on the same day.” Thus, the court of appeals observed, “Barnes’ alleged statement that ‘Hicks is filing for discrimination’ and David’s statement that he remembered ‘seeing it’ both predate Hicks’ termination.” Consequently, the Sixth Circuit found that Hicks had “produced evidence supporting the inference that Barnes and David knew of the [discrimination complaints] prior to her termination date.”

Prior Interaction With Decision-Maker

The Sixth Circuit then observed that “knowledge” of an employee’s discrimination complaint “can be inferred from evidence of the prior interaction of individuals with such knowledge and those taking the adverse employment action.” In applying this principle, the appellate court found that Hicks “has produced evidence that [the Senior Director of Operations] and Barnes were friends, and that [the Senior Director of Operations] was Barnes’ and David’s direct supervisor during the relevant time period.” “This work relationship,” the court of appeals reasoned, “supports an inference that both Barnes and David would have ongoing interactions with [the Senior Director of Operations].”

“Viewed in the light most favorable to Hicks,” the Sixth Circuit found that “Barnes’ or David’s knowledge of the [complaints of discrimination], coupled with [the Senior Director of Operations’] ongoing interactions with Barnes and David during the relevant period, supports an inference that [the Senior Director of Operations], who made the decision to terminate Hicks, knew of the [complaints of discrimination] prior to Hicks’ termination.” Because Hicks had produced sufficient evidence to show the designated decision-maker had knowledge of her discrimination complaints when the termination decision was made, the Sixth Circuit held that “[c]ontrary to the [trial] court’s ruling, Hicks has satisfied the second prong of her prima facie case.”

Citrus County Wrongful Termination Lawyers

Based in Ocala, Florida and representing workers throughout Florida, our wrongful termination lawyers in Citrus County, Florida have fought for the rights of employment discrimination victims for more than twenty years. If you have experienced workplace discrimination or have questions about your protection from retaliation under employment discrimination law, please contact our office for a free consultation with our wrongful termination lawyers in Citrus 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.