In a May 2010 decision, the Eight Circuit Court of Appeals dismissed the
retaliation claim of a woman terminated seven months after complaining about
alleged sexual harassment. Given that retaliation claims represented 36% of all
charges filed with the EEOC in 2009, this case provides a good roadmap for
employers to avoid liability for retaliation claims brought by employees
disciplined or terminated for performance reasons.
In Burkhart v. Am. Railcar Indus., No. S.09-2077-09-3043 (8th
Cir. May 10, 2010), the plaintiff was employed as a purchasing employee for
American Railcar. In her six years of employment with the company, the plaintiff
had an extensive disciplinary record, including numerous warnings about
tardiness and job performance. In 2003, the plaintiff’s supervisor warned her
that she had until the end of the month to improve her work or face discharge.
Although the plaintiff received a pay increase in 2004, she was informed that
the raise was not merit based, and that her job performance continued to be
unsatisfactory. In addition, during 2006, the plaintiff was disciplined on
multiple occasions for performance deficiencies, including a costly accounting
error that resulted in a one-day suspension. Following an annual inventory that
same year which discovered $500,000 worth of unaccounted material, the plaintiff
was suspended for five days and then terminated.
Approximately five months prior to her termination, the plaintiff complained
of sexual harassment by a supervisor two levels above her. According to the
plaintiff, the alleged harasser frequently viewed pornography on his
employer-owned computer, an allegation that was supported by the plaintiff’s
direct supervisor. In addition, the alleged harasser would often share sexually
explicit images and send inappropriate e-mails to other employees.
Company human resources had been aware of this problem as early as October
2005, at which time the alleged harasser was warned to stop viewing pornography
and sending explicit e-mails or face termination. In March 2006, as a result of
plaintiff’s complaint and the ensuing investigation, the company suspended the
supervisor at issue for five days with pay, cut off his internet access, and
warned him that he would be terminated if he continued to send sexually charged
e-mails. The plaintiff conceded that thereafter she was not subject to further
harassment by the supervisor.
In her suit, the plaintiff alleged that the five-day suspension and ultimate
termination of her employment was in retaliation for lodging a sexual harassment
complaint against the supervisor.
The Eight Circuit held that the plaintiff had met the first two prongs of the
prima facie case of retaliation, because she had engaged in protected activity
and suffered an adverse employment action. However, the Court held that she had
failed to establish a prima facie case, because no reasonable jury could find a
causal connection between the protected activity and the adverse action.
Further, the Court held that the employer had proffered a legitimate
non-discriminatory reason for the discharge.
Supporting the Court’s decision was the well-documented history of poor
performance and disciplinary actions preceding the plaintiff’s suspension and
termination. In addition, although the harassing supervisor was involved in some
of the discipline handed down by plaintiff’s immediate supervisor, the Court
noted that the supervisor who had allegedly harassed the plaintiff was not the
sole decision-maker in the disciplinary actions taken against her.
The plaintiff, in response, attempted to use her history of disciplinary
actions to her advantage by arguing that although she had been subjected to
numerous disciplinary actions in the past, it was only after her sexual
harassment complaint that the discipline rose to the level of termination.
However, the Court distinguished this case from an earlier ruling, overturning
summary judgment against an employee who had not been disciplined or informed
about complaints before he engaged in protected activity, but was later demoted
for those same acts. According to the Court, Ms. Burkhart’s pre-complaint errors
were well documented, and she had been threatened with termination previously.
In addition, the error that led to Ms. Burkhart’s termination was more costly
for the employer than plaintiff’s previous errors. The Court, accordingly,
confirmed the lower court’s granting of summary judgment for the employer, and
dismissed all of the plaintiff’s claims.
Employers are often frustrated by a perceived inability to discipline an
employee when he or she has recently engaged in protected activity. However, the
Burkhart case serves as a reminder that when performance issues are
confronted consistently and disciplinary actions are well-documented, courts are
much more likely to give employers the benefit of the doubt.
For additional information or assistance in addressing potential
retaliation claims, please contact the authors or any other member of the
McGuireWoods Labor & Employment and
Employee Benefits teams.