Insufficient showing results in win for employer

• DOI: http://doi.org/10.1002/nba.30572
• Date: 01 March 2019
• Published date: 01 March 2019

MARCH 2019 NONPROFIT BUSINESS ADVISOR

11

© 2019 Wiley Periodicals, Inc., A Wiley Company • All rights reserved

DOI: 10.1002/nba

been replaced by someone outside her protected

group. Since it was undisputed that a male employee

had replaced her in the CID department, the judge

ruled that the county was required to present a legiti-

mate and nondiscriminatory reason for termination.

The county argued in its motion that it legitimately

red her for a host of reasons because: (1) there were

problems with her evidence procedure, (2) other CID

members had complained about her performance, (3)

she had received one documented counseling and one

written reprimand, (4) she had reported late to work

and (5) she had allowed her vehicle’s battery to die.

However, the sheriff had claimed in his testimony

that she: (1) performed worse than expected, (2) didn’t

take initiative, (3) didn’t seem to care about the job,

(4) improperly transported some children in a county

vehicle, (5) communicated poorly with a victim’s

family, and (6) missed a scheduled training session.

The plaintiff responded that a jury should decide

whether all of those stated reasons were pretext be-

cause: (1) they had changed over time and (2) there was

no documentation to support the termination decision.

The county argued that documentation was only

required when an employee was terminated for dis-

ciplinary reasons, and the plaintiff was red simply

for poor performance.

EMPLOYEE WINS ➔ The judge agreed that

documentation wasn’t required for every termina-

tion. However, he said that when the red employee

was claiming that the stated reasons for termination

shifted over time, a failure of the employee to produce

documentation of the reasons could allow a reason-

able jury to infer pretext.

The plaintiff argued that the reasons given by the

defendant were false or unworthy of credence because

the only reason ever given to her was that the sheriff

“no longer had a place for her,” and the county’s story

had changed again during the pendency of the suit.

The judge refused to dismiss the suit after deciding

that the defendant’s explanations were inconsistent.

[Harp v. Cooke County, Texas, U.S. District Court

for the Eastern District of Texas, No. 4:17-CV-748,

12/18/2018].

Retaliation

Insufficient showing results in win for

employer

In 2004, the plaintiff—a black woman over 40—be-

came a supervisor in the Bureau of Protective Services

at the Louisiana Department of Health and Hospitals.

Three months after ling a 2007 discrimination

suit against the department, she was transferred to a

less prestigious position.

The plaintiff led a second racial discrimination

suit against the department in 2008.

Both discrimination suits were settled in 2011.

In 2015, she filed two separate discrimination

charges with the Equal Employment Opportunity

Commission, and a third discrimination suit against

the department.

Two years later, she led another EEOC charge.

And even though the third suit was pending, she led

a fourth discrimination suit against the department.

In that fourth suit, the plaintiff asserted retaliation

for her previous grievances and suits.

The department led a motion for summary judg-

ment with respect to the fourth suit.

The plaintiff claimed a retaliatory hostile work en-

vironment, alleging: (1) a co-worker allegedly laughed

each time she was denied a promotion, (2) her ofce

was moved from the sixth oor to the fourth oor,

(3) she was not invited to the 2017 Thanksgiving lun-

cheon, (4) she was not asked to participate in a cancer

awareness promotion and (5) she was isolated because

other employees were instructed not to talk to her.

The plaintiff also claimed she was denied nine

promotional opportunities in retaliation for her

grievances and suits, because there was “no other

explanation” for why she was not promoted.

District Court Judge Susie Morgan said the plain-

tiff was required to establish that: (1) she had engaged

in a protected activity, (2) she experienced an adverse

employment action following the protected activity

and (3) a causal link existed between the protected

activity and the adverse employment action.

The judge also explained that suits claiming retalia-

tion in violation of Title VII were not limited to actions

that affected the terms and conditions of employment,

and the plaintiff only needed to show that the alleged

action well might have dissuaded a reasonable worker

from making or supporting a charge of discrimination.

EMPLOYER WINS ➔ However, she ruled that

the examples alleged by the plaintiff were the kinds

of “petty slights” and “minor annoyances” that were

insufcient to establish a retaliatory hostile work

environment.

Addressing the issue of promotions, the judge said

the mere fact that some adverse action happened after

an employee’s protected activity was not enough to

(See EMPLOYMENT LAW on page 12)