Engaging in Protected Activity May Not Necessarily Prevent an Employer from Terminating or Disciplining You
Many, if not most, non-attorneys believe that after making a report of discrimination, expressing a concern about unlawful harassment, or exercising statutory rights (such as under the American with Disabilities Act or the Family and Medical Leave Act), they are impervious to any adverse action an employer may contemplate taking against them. This is not true.
To establish a claim of retaliation under Title VII or Section 1981, a plaintiff must prove by a preponderance of the evidence that: (i) he engaged in a protected activity; (ii) an adverse employment action occurred; and (iii) a causal link exists between the protected activity and the adverse employment action. Washburn v. Harvey, 504 F.3d 505, 510 (5th Cir. 2007). The burden of production then shifts to the defendant to articulate a legitimate, nonretaliatory reason for the alleged retaliatory action. Id. If the defendant satisfies this burden, the plaintiff must offer sufficient evidence that the proffered reason is a pretext for retaliation. Septimus v. Univ. of Houston, 399 F.3d 601, 608 (5th Cir. 2005); Gee v. Principi, 289 F.3d 342, 345, 347 (5th Cir. 2002). Under this framework, the employee's ultimate burden is to prove that the adverse employment action would not have occurred but for the protected conduct. Brown, 969 F.3d at 577. Even if a plaintiff's protected conduct is a substantial element in a defendant's adverse employment action, no liability for unlawful retaliation arises if the employee would have faced that discipline even without the protected conduct. See Long v. Eastfield Coll., 88 F.3d 300, 305 n.4 (5th Cir. 1996).
Wantou v. Wal-Mart Stores Tex., L.L.C., 23 F.4th 422, 436-37 (5th Cir. 2022).
A simple application of this rule looks like this:
Gregory files a complaint with HR because he believes he was unlawfully denied a promotion based on his race, in violation of Title VII of the Civil Rights Act and Chapter 21 of the Texas Labor Code. He provides HR substantial evidence to support his complaint. HR begins an investigation into Gregory's allegations and anticipates the investigation will take two to four weeks to complete. After Gregory files his complaint, his manager's direct supervisor, Vivian, reviews the quarterly production metrics of her entire downline. She and the other directors have been directed by upper management to terminate all underperforming employees–even those without any history of underperformance–in order to downsize the business and stay afloat. Gregory has always exceeded his quarterly quotas, but the stress from filing the HR complaint and a few personal issues negatively affected his performance the quarter Vivian is instructed to review to make termination decisions. Gregory gets terminated, along with 500 other employees with various performance histories. While Gregory may have a discrimination claim against his former employer, he likely does not have a viable cause of action for retaliation because there is no liability for retaliation if the employee would have faced discipline or termination even without engaging in protected conduct.
It is not uncommon for plaintiffs to have strong retaliation claims while the underlying discrimination claims fail. However, employees have the ultimate burden to prove that were it not for engaging in the protected activity the adverse action never would have occurred. Ultimately, this means that if an employee has engaged in protected activity and violates some workplace rule or policy, he can be disciplined or terminated just like any other similarly situated employee.
If you believe you have experienced unlawful retaliation, please feel free to schedule a consultation today. Consultations are completely confidential. Do not rely on this post as legal advice. Again, this post does not create an attorney-client relationship between the firm and the reader. Do not act in reliance on the contents of this post without seeking the advice of counsel.