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Use Caution When Disciplining An Employee After A Complaint

The closer in time an adverse job action occurs to an employee's discrimination complaint, the more likely it is to be considered retaliation. And, a retaliation complaint can succeed even if the initial discrimination claim was baseless, a federal court recently ruled.

The court was the Seventh Circuit Court of Appeals. Maryland and Virginia are in the Fourth Circuit, and Washington, D.C., is in the D.C. Circuit, so the ruling doesn't apply directly here. However, the Seventh Circuit has a reputation for strictness in its application of employment law, and our circuits could easily follow the same reasoning.

The case involved a man who worked as a temporary employee for a company called Covance Central Laboratory Services, Inc. Covance maintained both temporary and permanent workers and had a practice of converting temporary employees to permanent positions within four or nine months of their initial engagement, as long as they received favorable reviews.

The plaintiff did receive positive reviews, but he also filed an internal discrimination complaint against Covance. He alleged that his supervisor acted more favorably to female and white employees than toward males and African-Americans. When Covance's internal review found the complaint to be baseless, the plaintiff lodged a formal complaint with the EEOC.

He filed his EEOC complaint at around the same time he would have expected to be converted to full-time. As it happened, he was not offered a permanent position at that time. Later, Covance issued a hiring freeze, and his temporary position ultimately expired without conversion.

Two other temporary workers who started around the same time as the plaintiff were offered permanent jobs, however.

The plaintiff filed a federal lawsuit against Covance, alleging that he was refused a full-time position out of retaliation for his discrimination complaint. Covance asked the court to issue summary judgment, essentially ruling that the plaintiff had no legitimate claim. The trial court did so, but the Seventh Circuit reversed that ruling.

Covance's explanation may have been a pretext

Because the decision not to convert the plaintiff to a full-time position occurred very close in time to the the discrimination complaint, the appeals court held that there was an argument to be made that the decision was made in retaliation for that complaint.

In addition, the appeals court questioned Covance' explanation that it ultimately didn't hire the plaintiff due to the hiring freeze. Since other temporary workers had been converted at about the same time, it appeared that the hiring freeze was coincidental. Covance might not be able to rely on it as a non-retaliatory explanation.

The Seventh Circuit, therefore, allowed the man's retaliation complaint to move forward to trial.

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