Federal law (as well as many states’ law) forbids an employer from retaliating against an employee who engages in protected activity, such as complaining of unlawful discrimination. One way that many employees seek to demonstrate retaliation is by showing that the employer heightened the scrutiny of their behavior after they lodged a complaint. Courts have recognized that such post-protected activity nit-picking can be evidence of retaliation.
For instance, in Cantrell v. Nissan North Am., Inc.—a case decided by the United States Court of Appeals for the Sixth Circuit in 2005—the employer tolerated the plaintiff’s disruptive behavior for many years, including threats to co-workers, sexually inappropriate remarks, and harassment. Soon after pursuing an EEOC complaint for disability discrimination, the plaintiff was fired for having a panic attack while watching a work video. The court found that this increased scrutiny of the plaintiff’s behavior after filing an EEOC complaint provided evidence of retaliation. In other words, the fact that the employer let slide pre-protected activity behavior that was much more egregious and yet fired him for having a panic attack could convince a reasonable jury that the employer suddenly decided to change its tolerance level after he complained to the EEOC. In other cases, the Sixth Circuit has found evidence of retaliation where an employee was fired for tardiness the same day she complained of harassment but yet had never previously been disciplined for multiple incidents of tardiness and where a bank employee was fired due to a wire transfer shortly after engaging in protected activity even though the transfer was approved before the protected activity.
Kenney v. Aspen Technologies, Inc
A recent Sixth Circuit case issued on July 6, 2020—Kenney v. Aspen Technologies, Inc.—provides more guidance on the circumstances in which increased scrutiny may be evidence of retaliation. Aspen, a Michigan auto parts manufacturer, hired Karen Kenney to serve as its productions manager. Several years earlier, Kenney had worked for Aspen and had a record of causing workplace friction. Kenney’s re-hire quickly proved to be a disaster. Within three months of her re-hire, Aspen’s attrition rate doubled and dozens of employees quit, citing Kenney as the reason. Further, two employees formally complained that Kenney was targeting and/or harassing them and damaging employee morale. Consequently, Aspen chose to fire Kenney.
Kenney filed suit, alleging that she was fired in retaliation for complaints about racially discriminatory hiring practices that she voiced 2½ months before her discharge. Kenney claimed that voiced objections to Aspen practices that supposedly were discriminatory against black persons—a claim that Aspen denied. The Sixth Circuit affirmed the trial court’s summary judgment dismissal of Kenney’s claims, finding that, even assuming that Kenney engaged in protected activity, she didn’t have enough evidence to prove her case. First, the court found that the timing between her alleged protected activity and her discharge “is not, standing alone, a convincing case for proving causation,” and therefore, Kenney needed more proof.
Kenney argued that Aspen increased its scrutiny of her after she complained. In particular, she claimed that she was not disciplined for engaging in similar behavior during her first stint with Aspen seven years earlier and that Aspen didn’t have a problem with her demeanor and management style until after she engaged in protected activity. The court noted that “[g]enerally speaking, heightened scrutiny is reflected by a similar three-step pattern: an employee engages in conduct that, while technically objectionable, is blessed, or at least tolerated, by the employer; the employee engages in protected activity; the employer then takes an adverse action against the employee for conduct the employer had previously allowed.” The Sixth Circuit, however, found that Kenney could not make such a showing.
First, given the seven-year gap between Kenney’s two stints with Aspen, “it is difficult to believe she is comparing apples to apples.” Further, Kenney failed to show that her conduct during her first stint was similar to her conduct during her second stint. Noting that an “intervening cause” between the protected activity and the adverse employment action can dispel any inference of causation, the court found “at least two intervening causes: the complaints filed against Kenney and the documented instances of Aspen employees leave due to her management style.” The court concluded that Kenney also could not show that Aspen’s legitimate reason for firing her was a pretext for unlawful retaliation. Kenney v. Aspen Techs., Inc., No. 19-1027, 2020 WL 3638388 (6th Cir. July 6, 2020).
Occasionally, savvy employees will try to “game the system” by engaging in protected activity as a means of job protection. For instance, thinking that he’s on the hot seat, an employee may trump up a discrimination claim, knowing that the timing will look bad if he’s fired soon after making the complaint. This can sometimes place employers in a precarious position and lead to the “tail wagging the dog.”
Regardless of the merits or legitimacy of an employee’s participation in protected activity, employers should be very careful in handling employees who do so. Unfortunately, many supervisors have a natural tendency to place an employee in his/her cross-hairs after the employee voices a complaint. This may lead to a problematic outcome. It’s prudent for Human Resources (often with guidance from legal counsel) to play an active role in monitoring the level of scrutiny that is applied to employees who engage in protected activity, make sure that the company does not cross the line, and be closely involved in the decision-making with respect to any adverse employment actions. If an employer suddenly decides not to tolerate bad behavior that it tolerated before the protected activity, this raises a red flag.
One good way to avoid such a potential pitfall is to strictly and consistently enforce workplace rules and consistently document episodes of dissatisfaction with an employee’s performance or behavior (including on performance evaluations). That way, an employee who behaves badly after engaging in the protected activity will have difficulty arguing that the employer looked the other way before the protected activity. Otherwise, employers face a real risk of either: (a) feeling like they’re forced to retain a poor performing/behaving employee; or (b) being dragged into court to defend an unlawful retaliation lawsuit after taking an adverse employment action against such an employee.