The Difference Between Discipline and Retaliation

Your employee complained — again– that you violated his/her rights. Maybe last time s/he said you discriminated against him/her by not providing reasonable accommodation for a disability. Maybe before that s/he claimed you didn’t promote him/her because s/he is a minority worker. Now, s/he quit and says you didn’t pay the last week’s wages. You’ve had it and you decide you’re really going to stick it to that employee…

Stop. Does the exact action matter? If your motive is to “stick it” to that employee, no. It’s likely retaliation, which is illegal under most employment laws.

What if an employee files a discrimination charge and you discipline that employee. Is that retaliation? Maybe — or maybe not. Maybe it’s legitimate discipline. How do you tell the difference? Read on to see how…

This week you get a two-for-one special. Yep. you get not one, but two case examples.

The first case is Walsh v. 811 Autoworks LLC d/b/a OK Walker Autoworks and Miles Walker. Here, in a nutshell, is what went down:

Miles Walker, an auto mechanic, owned an auto repair shop in Georgia. He violated multiple Fair Labor Standards Act (FLSA) requirements by failing to pay the legally required overtime rate when employees worked more than 40 hours a week. He didn’t keep accurate or adequate records of his employees’ pay rates and work hours. Then one of his employees resigned, and he didn’t give that employee his final pay. So the employee complained to the Department of Labor.

Walker decided he was going to show his employee (and perhaps the DOL) who was boss. (See what I did there?) Instead of just giving the employee a check for his final wages of $915.00, Walker dumped 91,500 oil-covered pennies on his former employee’s driveway, According to the DOL it took the employee seven hours to remove the pennies, which stained his driveway.

That’s not all, though. With the coins, he left a pay stub with an expletive written on it and published derogatory statements about his former employee on his company’s website.

Let’s pause here for a few observations/insights.

First, retaliation against any employee, asserting their rights under employment laws is illegal, whether or not the employee still works for you. Even taking an action against an employee’s spouse, child, fiance, etc., may constitute retaliation.

Second, this is a clear case of retaliation. Walker did not pay his employee for his final week of work. That is a violation of the FLSA. Complaining to the DOL about an FLSA violation is protected activity. That means that an employer who retaliates against such an employee is liable both for the underlying violation and the retaliation. The employer’s actions here were so blatant, there can be no question it retaliated against its former employee.

Even if the employee’s claim for final wages had been found to be invalid, the retaliation claim stands independently of the underlying claim. In other words, an employee can lose on an underlying claim, and win on the retaliation claim. In fact, the retaliation claim often yields more in money damages than the underlying claim.

The DOL sued the shop and the owner and is seeking. $36,971 in back wages and an equal amount in liquidated damages from the shop and the owner. I don’t expect anyone will feel sorry for this employer.

OK, here’s our next case example, Ceus v. City of Tampa, No. 18-10484 (11th Cir. Feb. 3, 2020). In a nutshell, here’s what went down:

Patterson Ceus worked as a firefighter for the City of Tampa from March 2010 until his termination in May 2015. Twice he filed EEOC charges alleging racial discrimination. When the City terminated him, he alleged that it did so in retaliation for his EEOC charges and sued the City.

The court found that Ceus did not show that his firing was due to race bias or retaliation. The evidence showed that his supervisors didn’t even know about the first charge, and that the firing occurred eight months after the second charge. The court also found sufficient evidence of performance issues, including insubordination and neglect of duty. The court also noted that only the Fire Chief had authority to fire and could find no evidence to make a jury believe that the Fire Chief, “a black male, intentionally discriminated against Ceus, a black male, who received warning after warning from supervisors regarding his attitude, behavior, and attendance at work.”  The 11th Circuit Court of Appeals therefore affirmed the lower courts summary judgment ruling in favor of the City.

The important takeaway in this case is that even when an employee engages in protected activity, s/he can be disciplined or even terminated without the employer being found to have retaliated. It always comes down to the specific facts. Here, the specific facts did not support a retaliation claim. It also comes down to having good documentation.

At the same time, documentation with conclusory phrases like “bad fit” or “bad attitude” could suggest retaliation. A short time between the adverse action and the protected activity could also suggest retaliation. On the other hand the more time that passes, the weaker the inference of retaliation will be.

If you do find yourself needing to discipline an employee that has complained of any employment law violation, speak with friendly employment counsel about proper steps to take, and make sure you have good documentation. Above all, make sure that your reasons for discipline are sound and unrelated to charges, lawsuits, or any complaints of employment law violations–and, again, that you have good supporting documentation.

OK, this looks like a good place to end. See you next time!

culture? Visit my website, to contact me for a complimentary 20-minute consultation. 

Watch the latest video clip in my series, “Ask the Employer’s Lawyer: My Employee Has Exhausted All Her FMLA Leave Time. What do I do?

Watch my television interview on Stop My Crisis with Vivian Gaspar.

Contents of this post are for educational/informational purposes only, are not legal advice, and do not create an attorney-client relationship. Consult with competent employment counsel in the state(s) in which you employ people with your specific questions.

Before choosing an attorney, you should give this matter careful thought. The selection of an attorney is an important decision. If you find this communication to be inaccurate or misleading, you may report it to the Committee on Attorney Advertising Hughes Justice Complex, CN 037, Trenton, NJ


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