- A Texas employer's firing of a worker for accessing a confidential database was not pretext for retaliation, the 5th U.S. Circuit Court of Appeals has ruled (Abbood v. Texas Health and Human Services Commission, No. 18-11655 (5th Cir. Nov. 7, 2019)).
- Amanda Abbood, whose job for the Texas Health and Human Services Commission was to determine eligibility for Medicaid programs, was fired in early 2017 after she accessed a database of background and financial information about Medicaid recipients and applicants. Abbood found a dog tied up outside and input the phone number from the dog's tag into the employer's system to find the animal's owner, according to court documents. As part of her employment, Abbood had signed agreements acknowledging that unauthorized use of the information would result in disciplinary action "up to and including dismissal."
- Abbood sued, alleging she was actually fired for complaining about sexual harassment just weeks earlier. A district court granted summary judgment for the employer and the appeals court affirmed. The 5th Circuit said several factor's weighed against Abbood, including the employer's policy, her signed agreements and her admission of wrongdoing. Moreover, no adverse employment action was taken against a co-worker who had also reported sexual harassment and other employees had been terminated for similar unauthorized use of the database.
Discipline doled out in close temporal proximity to protected activity can understandably make managers and HR professionals nervous. After all, when only a short period of time elapses between protected activity and an adverse employment action, that can can be enough to establish a prima facie case of retaliation, experts previously told HR Dive.
For example, an employee fired two weeks after making a workers' compensation claim was recently allowed to proceed with his retaliation claim. In allowing his case to go forward, the 5th Circuit pointed out the "stark temporal proximity" of the two actions. While there is no bright line establishing how much time can elapse before employer bias can't be found, a federal district court in Maine recently offered six months as a benchmark.
In Abbood, fewer than 30 days passed between her protected activity and her firing. But as Abbood demonstrates, courts generally allow employers to take legitimate disciplinary actions. Here, the employer's policy and its even application served as a solid defense.
Allison West, principal at Employment Practices Specialists, told attendees at a recent conference that HR should train managers and supervisors to document everything. She suggested that managers use bullet points in write-ups, clearly state expectations, ask what an employee needs from the employer and remember that electronic evidence can last forever.