It can be difficult for employers to decide how to address employee misconduct when that employee has reported discrimination and the investigation is ongoing. The fear of prompting a retaliation claim can create paralysis. A recent decision by the New Hampshire federal court provides support for employers who wish to take adverse employment action when justified.
In Hubbard v. Tyco (Opinion No. 2013 D.N.H. 165), the District of New Hampshire analyzed a Title VII retaliation claim where the employee claimed his termination for insubordination was really in retaliation for reporting discrimination. The Court granted summary judgment for the employer, finding Hubbard had not met the “but-for” standard. The Court, following First Circuit precedent, framed the issue as follows: if Hubbard had not reported discrimination, he still would have been terminated for insubordination, and there was no evidence that Hubbard would have been terminated if he had not engaged in the insubordinate conduct. If those questions can be answered in that fashion, the adverse action is not retaliatory.
This opinion confirms that it is more difficult for an employee to prevail in a Title VII retaliation claim. The U.S. Supreme Court, in University of Texas Southwestern Medical Center v. Nassar, 133 S. Ct. 2517 (2013), clarified that Title VII retaliation claims require proof of “but-for causation” rather than the lessened causation test for discrimination claims (where a plaintiff need only show that discriminatory animus was a motivating factor for the adverse action). This requires proof that the unlawful retaliation would not have occurred in the absence of the alleged wrongful action of the employer.