Employer Documentation of Performance and Discipline Foils Retaliation Claim

May 17, 2010

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.

Case Background

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.

Court Decision

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.