22 JANUARY / FEBRUARY 2017 Retaliation claims continue to rise and can be costly.1 A recent 7th Circuit Court of Appeals decision, Gracia v. Sigmatron, International, Inc., Case No. 15-3311 (November 29, 2016), is a reminder to employers to be careful in taking adverse action against an employee who recently complained of sexual harassment or discrimination. In Gracia, a longtime employee, who had complained of sexual harassment by her supervisor and filed a charge of sex discrimination with the Equal Employment Opportunity Commission (EEOC), was fired two weeks later for allegedly allowing a subordinate to make a production error on a customer order. The employee sued the employer for sex discrimination and retaliation. While Gracia was unsuccessful on the sexual harassment claim, a jury found in her favor on the retaliation claim, awarding $57,000 in compensatory damages and $250,000 in punitive damages. Case background: Gracia was highly regarded and had received a number of promotions. In her most recent role as assembly supervisor, she was responsible for production output, quality and overseeing the work of her team members on the assembly line. Gracia’s male supervisor began emailing her sexually graphic photographs through the company’s system. Gracia did not complain, due to her supervisor’s position and his close personal relationship with the company’s president. Gracia later alleged that her supervisor began calling her at home and asking her to go out with him. She declined, and a few days later she was suspended due to attendance problems, despite having been told previously that her attendance was “excellent.” Upon being suspended, Gracia complained to human resources (HR) about her supervisor. HR informed the company’s president, who ultimately told Gracia and her supervisor to “shake hands” and learn to get along. Dissatisfied, Gracia filed a charge with the EEOC. Two weeks later, Gracia was fired after one of her subordinates made a mistake; the error was similar to mistakes others had made, without being terminated. Legal perspective: To prevail on a retaliation claim, a plaintiff must prove: (1) that he or she engaged in statutorily protected activity (e.g., filed a complaint or participated in an investigation, or opposed an unlawful employment practice); (2) that the employer took an adverse employment action (e.g., suspension, warning, termination or other discipline, demotion, transfer or negative evaluation) against the plaintiff; and (3) that the protected activity and the adverse employment action were causally connected. With respect to causation, a plaintiff must show that the adverse employment action occurred because of the employer’s desire to retaliate. In Gracia, the 7th Circuit reiterated the general rule that suspicious timing alone is rarely enough to establish causation; however, if there is other circumstantial evidence, it may raise an inference of retaliatory motive. The suspicious timing of Gracia’s termination, coupled with evidence that others had not been terminated for similar mistakes, supported the plaintiff’s retaliation claim. Employers are reminded that, before taking action against an employee who has recently engaged in protected activity, they should confirm that the same action has been, or would have been, taken against other employees for the same reason. As noted above, protected activity includes both participating in a protected activity, such as filing a complaint, and opposing an unlawful employment practice. In 2016 the EEOC expanded the definition of “participating” in protected activity to include internal complaints and investigations. Suspicious Timing of Termination Supports retaliation claim Debra A. Mastrian Partner SmithAmundsen LLC dmastrian@salawus.com SmithAmundsen LLC is a Diamond Associate Member of the Indiana Bankers Association. Article author HUMAN RESOURCES
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