Dive Brief:

• An employee who was fired after complaining to HR about discrimination can take her retaliation claim to trial, the 2nd U.S. Circuit Court of Appeals held (Villetti v. Guidepoint Global LLC, No. 21-2059 (July 7, 2022)).
• In an email to HR, the employee complained about a male manager’s behavior and what she considered a series of adverse actions against female employees. The manager fired her a week later, and she sued Guidepoint for gender discrimination and retaliation under Title VII of the Civil Rights Act of 1964 and New York law.
• A federal district court granted summary judgment to Guidepoint, but the 2nd Circuit revived the retaliation claim. It said the employee presented evidence raising a trial question over why she was fired. While Guidepoint may be able to rebut this evidence, any “competing reasonable inferences in the record ... cannot be resolved on summary judgment,” the panel explained.

Dive Insight:

Retaliation occurs when an employer takes “materially adverse action” against an employee for engaging in protected activity, such as complaining to the employer about discrimination, according to the U.S. Equal Employment Opportunity Commission. The scope is broad: Under Title VII, a materially adverse action is any action that “might deter a reasonable person from engaging in protected activity,” the EEOC’s enforcement guidance explains.

That doesn’t mean employees get shielded from discipline for misconduct or poor performance just because they engage in protected activity, the guidance emphasizes. Recently, a Michigan brewery prevailed on a former employee’s retaliation claim after he was fired for complaining about a supervisor’s allegedly discriminatory statements. To the contrary, the brewery established it had lawful reasons for discharging him: In the months before he was fired, he was legitimately reprimanded several times and then terminated after he missed a mandatory meeting and scheduled work shift.

In this case, Guidepoint initially provided legitimate reasons for firing the employee, the 2nd Circuit said. The company argued to the lower court that a co-worker had complained to a supervisor and HR about her and she didn’t get proper authorization for taking a trip to Boston. Also, in documents to the lower court, Guidepoint stated that the manager decided to fire the employee after it conducted an internal investigation and interviewed several employees, the 2nd Circuit said. But the manager never mentioned the investigation or provided any details about the decision-making process that led to the employee’s termination, the panel pointed out.

Then, in written arguments submitted on appeal, Guidepoint didn’t mention any internal investigation and asserted instead that because the employee worked at will, it wasn’t required to explain why it discharged her, according to the court. The employee pointed to discrepancies in these explanations suggesting that Guidepoint developed them over time to counter her evidence of retaliation, the appeals panel said. Nor did Guidepoint provide documentation of the investigation’s findings to corroborate its existence, the 2nd Circuit added.

These inconsistencies, coupled with the timing of the discharge, raised a trial question over whether the employee was terminated in retaliation for her email to HR, the 2nd Circuit said.