A reasonable jury could determine that an employer was looking for an excuse to fire an employee when it searched his text messages, the 3rd U.S. Circuit Court of Appeals held Sept. 15. A federal district court erred when it granted summary judgment in favor of the Pennsylvania steel construction company after the former employee alleged he was fired for filing discrimination and retaliation claims, the appeals court said (Canada v. Samuel Grossi & Sons, Inc., No. 20-2747 (3rd Cir. Sept. 15, 2022)).
The employee originally filed a charge with the U.S. Equal Employment Opportunity Commission in 2019 and filed a complaint against his employer in district court one month later. The employee, who had “serious back problems,” including herniated discs and arthritis, alleged the employer prevented him from accessing Family and Medical Leave Act forms and harassed him for trying to use FMLA leave.
He also alleged he was subjected to race discrimination, retaliation and a hostile work environment. Upon filing his lawsuit against the employer, the employee said one of the company’s co-owners approached and threatened him to drop the suit.
However, the employer said it fired the employee after it cut the padlock off of an on-site locker the employee had been using as part of an effort to move the locker. Upon opening it, the locker’s contents were removed, including a cell phone. An HR representative took the phone — allegedly believing it to be a company-provided phone — correctly guessed its password and searched it.
The HR rep said she found messages from more than a year earlier in which the employee appeared to have solicited sex workers. Furthermore, a comparison of the time records of the text messages with the employee’s work hours appeared to show that the employee had done so while on the clock.
The HR rep asid she “immediately fired” the employee upon discovering the texts, reasoning that the employee had violated the company’s employee conduct and disciplinary action policy.
In his suit, the employee denied the allegations and, upon his termination, amended his complaint to allege he was fired in retaliation for his race and disability discrimination complaints.
The district court granted summary judgment in favor of the employer on all claims, holding that although the employee argued that the employer’s rationale for firing him was pretextual, this argument “‘relate[d] to the propriety of the search of plaintiff’s cellphone, not whether defendant terminated plaintiff’s employment for appearing to solicit prostitutes while clocked in and on company property.’” It found that no reasonable jury “‘could conclude that defendant’s proffered nondiscriminatory and nonretaliatory reason for terminating plaintiff’s employment was pretextual.’”
On appeal, the 3rd Circuit reversed. It found that an employer’s motivation for investigating an employee may be relevant to pretext, adding that there existed circumstantial evidence that could convince a reasonable jury that the employee was a victim of unlawful retaliation. The court also held that there were genuine issues of fact in the case, including evidence that could allow a jury to reasonably disbelieve the construction company’s claims.
For one, the court drew attention to the company’s employee conduct policy, which allows for searches only if the employer “‘has reasonable suspicion that an individual is involved in misconduct on Company premises.’” Though the employer provided a rationale for moving the employee’s locker, it “could not provide any legitimate basis for searching [the employee]’s locker, let alone the cellphone inside the locker,” the 3rd Circuit said.
Moreover, the court said the employee had “shown the overall weakness” of the employer’s argument that the phone’s text messages were searched in order to determine whether the phone was its property. It also took issue with the HR rep’s conduct in searching the phone.
“The breadth of this search alone undermines the plausibility that [the employer] was trying to see if the phone belonged to the company,” the 3rd Circuit said. “As we have explained, a jury could find that reading text messages from this far back in time is more suggestive of a search to find an excuse to fire [the employee] in retaliation” for his protected activity under Title VII of the Civil Rights Act, the Americans with Disabilities Act and the FMLA.
The 3rd Circuit remanded the case to the district court for further proceedings.
