Dive Brief:
- A Texas restaurant server's termination was the result of poor work performance, not discrimination or retaliation, the 5th U.S. Circuit Court of Appeals has ruled (Allaudin v. Perry's Restaurants, Ltd., No. 19-20546 (5th Cir. March 31, 2020)).
- A Texas-based Perry's Restaurant warned server Sohail Allaudin on multiple occasions to stop what it called "aggressive sales tactics." Management eventually formally notified him an additional customer complaint would result in his termination. Days later, Perry's fired Allaudin following a customer complaint. Between his final warning and termination, another server made disparaging remarks to Allaudin about his national origin and religion. Allaudin reported the incident and the other server was suspended without pay for seven days. When the server returned to work, he told Allaudin that his discipline had been reduced three weeks to one because "white people stick together." Following his firing, Allaudin sued, claiming discrimination and retaliation under Title VII of the Civil Rights Act of 1964 and Texas law. A district court granted Perry's summary judgment.
- The appeals court affirmed, noting it has held repeatedly that termination due to poor work performance supported by specific examples is adequate. Allaudin, however, claimed disparate treatment, pointing to the temporal proximity of his complaint and his firing. The court, however, was not persuaded, saying "it's important to recall that" his final warning predated the other server's comments.
Dive Insight:
Employers may not retaliate against employees for engaging in protected activity, such as complaining about harassment or discrimination. But employers may have reason to take an unrelated adverse employment action against a worker who has happened to complain. This is generally legally sound, sources previously told HR Dive, but an employer should be able to explain and show the legitimate reason. After all, timing alone can establish a prima facie case of retaliation.
For example, the 5th Circuit previously found that an HR manager's firing was not retaliatory, even though it occurred seven days after her Family and Medical Leave Act leave. And several months before that, the court decided a Texas Health and Human Services Commission worker was fired not in retaliation for her complaint of sexual harassment weeks earlier but in response to her accessing a confidential database.
HR may help employers avoid trouble in court by documenting disciplinary actions and employee complaints thoroughly.