Dive Brief:

• A university president alleging misconduct by his former employer to the organization that accredited the college wasn’t protected activity, the 5th Cir. has ruled (Aguillard v. Louisiana College, No. 19-30941, (5th Cir., Aug. 19, 2020)).
• Joe Aguillard was the president for Louisiana College until he stepped down for health reasons. He was kept on as a tenured faculty member, but "Aguillard’s relationship with his successor was, in a word, contentious," the court said. He sued the university after he was fired for cause from his position, according to the court’s opinion. Aguillard filed a claim with the U.S. Equal Employment Opportunity Commission (EEOC) and in a lawsuit claimed hostile environment caused by his successor and religious and disability discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964 (Title VII) and the Americans with Disabilities Act (ADA). Aguillard also submitted a complaint to the college’s accrediting body alleging misconduct which led to the college suing Aguillard for defamation.
• The federal district court ruled for the college on summary judgment. The court held that the ADA and Title VII anti-retaliation prohibitions do not include the communication with the accrediting organization. The appeals court affirmed. The college’s defamation lawsuit was based on statements Aguillard made to the accrediting organization and such statements, unlike EEOC complaints, are not protected activity, the court said. The court also noted that the 10-month gap between the filing of the defamation lawsuit and Aguillard’s protected activity was too long to support a retaliation claim.

Dive Insight:

Most of the nation's employment laws forbid retaliation against workers who engage in what is called "legally protected activity." In spite of that prohibition, retaliation complaints are a common occurrence, according to the EEOC.

This case illustrates that not all activity undertaken by an employee after a discrimination complaint has been filed qualifies as legally protected activity that must be free from employer retaliation. For example, the 7th U.S. Circuit Court of Appeals recently ruled that leaving work sick is not protected activity under Title VII. In another instance, the 8th U.S. Circuit Court of Appeals held that a Nebraska worker’s complaint to company officials that a colleague was subjected to racial bias wasn’t protected activity because she didn’t have an "objectively reasonable basis" for believing that a Title VII violation had occurred.

That being said, there are many ways to engage in protected activity. In general, when workers complain about discrimination or harassment or participate in an internal investigation into alleged misconduct, they are engaging in protected activity. Examples of protected activity include testifying before the EEOC, assisting the EEOC, or participating in EEOC investigations, the Aguillard court said.

Apart from what constitutes legally protected activity is the legal question revolving around the amount of time that has elapsed between the employee’s bias complaint and the employer’s adverse employment action. Timing alone can establish a prima facie case of retaliation. "Close timing between an employee’s protected activity and an adverse action against him may provide the ‘causal connection’ required to make out a prima facie case of retaliation,” the Aguillard court said, adding that “while a four-month gap may be sufficient evidence of causation, a five-month gap is too long absent other evidence."

In this instance, the Aguillard court said, the plaintiff could not demonstrate causation via temporal proximity because there was a 10-month gap between the protected activity and the alleged retaliation — the college’s filing of the defamation lawsuit.