When the Calendar Is an Employer's Best Friend

Timing Is Not Always Enough to Show Retaliation And Sometimes Can Help Defend a Claim of Discrimination.

The following factual pattern regularly takes place in almost every workplace in America. After an employee is placed on a performance improvement plan and given closer supervision, s/he complains of discrimination, engages in insubordination by refusing to follow the supervisor’s instructions, and then is ultimately fired. Litigation follows. However, in a recent case by the Summit County Court of Appeals, the court refused to infer unlawful retaliation merely from the timing of the termination when the plaintiff was already in the disciplinary process and practically dared her employer to fire her and when the plaintiff also produced no evidence that the decisionmakers were aware of her prior discrimination complaint. Price v. Matco Tools, 2007-Ohio-5116 (9/28/07).

Even though the plaintiff was fired shortly after she had complained of discrimination (which would normally be enough to show causation as required for a prima facie case), the court found that temporal proximity alone was insufficient to meet the plaintiff's burden of proof. This was particularly true when the plaintiff could not show that any of the decisionmakers had knowledge of her discrimination allegations. In addition, “to conclude that this proximity alone is sufficient to establish a prima facie case of retaliation would disregard the pattern of discipline both before and after Appellant's complaint. Many employees complain of unfair treatment in the midst of disciplinary action. The conclusion that this, standing alone, raises the specter of retaliation would bind employers in a legal straightjacket and require this court to assume the position of a "`super-personnel department that re-examines an entity's business decisions.'"

Finally, with respect to the plaintiff’s age discrimination claim, the court ruled that the plaintiff could not show that she had been replaced by a substantially younger employee – which was necessary to prove her prima facie case -- when the employer did not fill plaintiff’s position until fourteen months after she had been fired. "A person is `replaced' only when another employee is hired or reassigned to perform that person's duties. A person is not replaced when another employee is assigned to perform the plaintiff's duties in addition to other duties, or when the work is redistributed among other existing employees already performing related work."

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with an attorney.