- A Miami-Dade County police officer was fired for insubordination and disrespectful conduct, not filing a complaint with the U.S. Equal Employment Opportunity Commission (EEOC) the 11th U.S. Circuit Court of Appeals concluded (Johnson v. Miami-Dade County, No. 18-11479 (11th Cir. Jan. 30, 2020)).
- Harrius Johnson had filed an EEOC complaint alleging race and sex discrimination. After being fired, he sued, and a district court granted summary judgment for the county. On appeal, he failed to show that other similarly situated employees were treated differently and could not prove that negative monthly evaluations were material adverse employment actions. Additionally, his supervisor had legitimate, nondiscriminatory reasons for terminating him — he tried to circumvent the proper chain of command, and "[p]romoting the chain of command and punishing insubordination are legitimate, important concerns for a police force," said the 11th U.S. Circuit Court of Appeals.
- Although the employer imposed discipline on Johnson 58 days after he filed the EEOC complaint, he presented no other evidence of pretext, and the 11th Circuit said that even shorter timeframes, absent other evidence, were insufficient to establish pretext. Accordingly, the 11th Circuit upheld the lower court's ruling.
Discharge or other discipline that closely follows protected activity can suggest illegal bias or retaliation, but as the Johnson court noted, timing alone is not usually sufficient.
In one recent case, an employee who was fired two months after bringing a complaint was allowed to proceed with his race bias and retaliation claims. But the employee also was able to show he was treated more harshly than other employees and also subjected to racial harassment by a co-worker.
Similarly, a Wells Fargo worker who was fired shortly after announcing her intention to take Family and Medical Leave Act leave was able to show "shifting justifications" for the termination decision. She, too, was allowed to proceed with her lawsuit.
Experts recommend that employers avoid such claims by regularly training managers on applicable local, state and federal anti-bias laws. Moreover, all complaints of illegal activity should be investigated promptly and thoroughly.
And when protected activity and discipline need to co-exist, HR can assist managers in ensuring that policies are enforced fairly and evenly.