Court Holds That Once An Employer Acts With An Illegal, Retaliatory Motive Against An Employee, The Employee’s Mildly Inappropriate Response Is Not Sufficient To Remove The Taint Of Illegal Retaliation

In Fisher v. Lufkin Industries, __ F.3d __, No. 15-40428, 2017 WL 562444 (5th Cir., Feb. 10, 2017), the African-American plaintiff, Fisher, complained to Lufkin’s VP of HR that his supervisor referred to him as “boy,” which he regarded as racist. HR investigated, and determined that the supervisor used the word “boy,” but not in a racist way. About a month later, a white coworker of Fisher’s went to management and told them that he did not like the fact that Fisher had reported his supervisor for using the word “boy.” The coworker claimed Fisher sold pornographic DVDs from his lunch box at work, and offered to orchestrate a sting operation to prove it. The company agreed, and Fisher was indeed caught selling pornographic DVDs at work. After he was caught, Fisher did not allow the company to search his car, claiming that he had to leave immediately because his wife called him and told him she was ill and needed him. A week later he was fired for an alleged “serious violation of company policies.”

Fisher sued for retaliation under Title VII. The district court held a bench trial. The trial judge found that Lufkin had retaliated against Fisher for his complaint about his supervisor using the word “boy,” but that Fisher’s own misconduct in refusing to cooperate with the company in its investigation, and lying about his wife being ill, broke the causal chain, and, therefore, his termination was lawful. Fisher appealed.

On February 10, 2017, the U.S. Court of Appeals for the Fifth Circuit reversed the district court. The Fifth Circuit agreed with the district court that the evidence demonstrated that the company sought to entrap Fisher in retaliation for his protected activity (complaining about his supervisor’s use of the word boy). The Fifth Circuit also agreed with the district court that selling pornography at work to other employees who wanted to buy it was not a terminable offense at Lufkin, and actually did not appear to even be a violation of any company policy. As such, the court agreed with the district court that Lufkin had targeted Fisher for termination because of his protected activity — which is classic illegal retaliation.

The court disagreed with the district court’s finding that Fisher’s own misconduct in refusing to cooperate with the company in its investigation, and lying, broke the causal chain, and, therefore, his termination was lawful. The court found that finding simply “implausible” given the record evidence. Furthermore, the court observed that, “to shield employers from liability for adverse actions taken in response to such resistance would be to incentivize supervisors motivated by retaliatory animus to initiate groundless investigations with the purpose of causing the targeted employees to resist them, thereby leading to the employer’s adverse actions. We decline to provide such an incentive.” Id. at *5 n.8.

Over the years, retaliation claims have generally fared better with the U.S. Supreme Court and the Fifth Circuit than other types of employment claims. This case is yet another example. While it is a very fact-specific case, it does indicate that once an employer is shown to have acted with retaliatory animus, the plaintiff has significant leeway before a court will conclude that something he or she did removes the retaliatory taint and exonerates the employer from liability.

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