Suspicious Timing of Firing Restores Employee’s Retaliation Claim

?Takeaway: Suspicious timing between a protected activity under Title VII of the Civil Rights Act of 1964 and a materially adverse action may help support a retaliation claim. Courts often look at the proximity between an adverse action and the protected activity. A gap of only hours or days between the employee’s protected activity and the adverse employment action strengthens the employee’s case.

Finding that an employee’s firing one day after complaining of violations of Title VII of the Civil Rights Act of 1964 was suspicious timing, the 7th U.S. Circuit Court of Appeals reversed by 2-1 a lower court’s dismissal of the employee’s retaliation claim. The court also affirmed dismissal of the employee’s claims of racial discrimination for lack of evidence. 

The employee, who is Hmong and speaks English as a second language, was hired by a university as its director of affirmative action in October 2018. However, by December the relationship with his supervisor, the vice chancellor of HR, was already rocky. His supervisor criticized the quality of the employee’s investigations and his reports. In February 2019, she gave him a 175-page self-assessment to complete as part of his performance review, in which he claimed he was being paid less because of his race. The supervisor allegedly cancelled the review meeting and declined to reschedule it. She also allegedly did not provide him a copy of his final written review until the university fired him.  

Tensions escalated in late February and early March, when the employee sought to hire a training and compliance officer. The selection committee presented three candidates—two white women and one Latina woman. The employee, who had the final say, selected the Latina candidate because she had a law degree and to increase diversity in the HR department, which was primarily white. His supervisor criticized the decision, questioning his judgment and instructing him to slow the hiring process due to concerns she had heard from others regarding the candidate.

The employee began to copy their e-mails to the supervisor’s manager, and insinuated that race was the reason the supervisor was questioning his hiring decision. He demanded that he no longer report to his supervisor. A few days later, the employee reportedly told the manager that the supervisor said to him in their meeting that “people of color are not a good fit” for HR. She denied ever saying this. The employee also raised broader concerns about the HR department’s hiring and promotion policies, expressing the view that the university could face legal liability because of them. He again insisted that he would no longer report to his supervisor and would quit if no change was made.

The following day, the manager, three other university leaders and an attorney met to discuss the situation and decided to fire the employee, subject to a review of the performance appraisal report from his supervisor. After reviewing the report, the manager fired the employee for insubordination and poor performance.

Legal Action

A year later, the employee sued the university for discrimination and retaliation under Title VII. The federal district court granted summary judgment to the university on all counts, and the employee appealed the decision to the 7th Circuit.

The appeals court unanimously agreed with the lower court’s finding that the employee lacked evidence for his discrimination claim but split 2-1 in a ruling to reverse summary judgment on the claim of retaliation.

Unlawful retaliation occurs when an employer takes an adverse employment action against an employee who engages in protected activity. An employee engages in protected activity when they oppose discrimination, including by explicitly or implicitly informing their employer that its actions constitute discrimination.

In its ruling, the court’s majority noted that the manager made the tentative decision to fire the employee just one day after he met with the manager and voiced concerns about unlawful discrimination and Title VII liability. “This close temporal proximity alone can give rise to a finding of causation,” the majority wrote. “Such a compact timeline suffices as one of the instances where the timing is tight enough to support an inference of causation.”

Because there was also a clearly nondiscriminatory reason for the firing—the employee’s insubordination—it is up to a jury and not the courts to determine whether the employee would have been fired if not for his protected complaints about discrimination, the court held.

The dissent disagreed, arguing that the majority was conflating temporal proximity of the complaint and the firing with suspicious timing. It noted that if all the record showed were a complaint of race discrimination followed by a firing the next day, a reasonable jury might find the temporal proximity to be suspicious. But in this case, there was clear evidence that the employer’s reasons for firing were well-founded, the dissenting judge said. The employee’s “ultimatum and his history of insubordination were indisputably central to the university’s decision to terminate him,” the dissent stated.

Xiong v. Bd. of Regents of the Univ. of Wisconsin Sys., 7th Cir., Nos. 22-1271 (March 9, 2023).

Robert S. Teachout, SHRM-SCP, works in the Washington, D.C., area and is a legal editor for XpertHR, a service helping HR build successful and purposeful workplaces.

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