- A municipal employee who was fired shortly after writing a complaint letter to the U.S. Equal Employment Opportunity Commission (EEOC) was unable to prove sex discrimination, but her retaliation complaint can proceed (Tebo v. City of DeBary, Florida, No. 18-13819 (11th Cir. Sept. 3, 2019)).
- The employee's gender bias claim failed because her supervisor presented several non-discriminatory reasons for her termination: He believed she was trying to undermine him to others, provided false and misleading statements during an internal investigation, failed to follow a supervisor's directives, and "used an unauthorized email account to send and receive official communications."
- The employee successfully presented a prima facie case of retaliation, however. Her boss admitted he began drafting her termination around the time he learned of her letter to the EEOC, and within three days he had taken away one of her significant job duties and given it to another employee. Within 16 days, the employee was stripped of her job title, and she was ultimately fired just 32 days after her supervisor learned of the complaint. Accordingly, the 11th U.S. Circuit Court of Appeals allowed the retaliation claim to proceed.
As this case highlights, the definition of "protected activity" encompasses more than formal lawsuits. The EEOC says protected activity includes being involved in an EEO charge, complaint, investigation or lawsuit; talking with a supervisor about discrimination; and refusing to carry out instructions that would incur discrimination, among other actions. Additionally, says the EEOC, "[o]ther acts to oppose discrimination are protected as long as the employee was acting on a reasonable belief that something in the workplace may violate EEO laws, even if he or she did not use legal terminology to describe it."
While employees who engage in protected activity are not shielded from legitimate discipline, up to and including termination, a close relationship in time between the protected activity and an adverse employment action can be suggestive of illegal retaliation.
It's also important to remember that, as in this case, retaliation claims can survive even if the underlying harassment or discrimination charge is found to be without merit. Earlier this year, for example, the 1st U.S. Circuit Court of Appeals found the U.S. Postal Service liable for retaliation against a worker who filed a complaint and was subsequently fired for sleeping on the job. While the court found no race or national origin discrimination, other workers who had engaged in similar behavior and had not filed complaints were treated more leniently.