Legitimate Business Reasons Support Termination, Despite Employee's Recent Complaints of Discrimination

Employers often feel forced to walk on eggshells around employees who have made informal or formal complaints of discrimination, and often go so far as excusing otherwise inappropriate conduct for fear of a retaliation claim if any adverse action is taken. A recent case out of the Ninth Circuit provides some hope for employers in this regard.

In Curley v. City of North Las Vegas, the plaintiff was an employee of the City for many years, in a position where he was responsible for cleaning sewers and preventing sewer blockages. In December 2008 the plaintiff filed a charge with the EEOC alleging that the City had denied his request for an accommodation relating to a hearing impairment and retaliated against him for having filed a prior charge of discrimination. In January 2009 the plaintiff made a second request for an accommodation, which the City denied after determining that his request would have prohibited the plaintiff from performing an essential job function. 

The record showed that the plaintiff had a long history of discipline over the course of his employment for making insensitive remarks about coworkers, engaging in verbal altercations with coworkers, and threatening coworkers with violence. After the plaintiff's second accommodation request was denied, the plaintiff got into another altercation with a coworker. After this incident, the City started an investigation into the plaintiff's conduct. During the investigation, the City found that the plaintiff had repeatedly threatened several of his coworkers and their families with violence. The investigation also showed that the plaintiff spent significant time conducting personal business while at work. The City also ordered a fitness for duty evaluation to determine if the plaintiff was a danger to himself or others. The doctor who conducted the exam found the plaintiff fit for duty and not a danger to himself or others. As a result of the investigation and after a hearing, the City terminated the plaintiff's employment for nonperformance of duties due to excessive personal phone calls, intimidation of coworkers by threats of violence, conducting and soliciting personal business on work time, and making disparaging remarks about his supervisors and the City.

The plaintiff filed suit alleging that the City terminated him as discrimination for his disability and in retaliation for his EEOC charge and accommodation request. The district court granted summary judgment in favor of the employer.

The Ninth Circuit Court of Appeals agreed with the district court because the City had presented legitimate reasons for the termination and the plaintiff could not raise a genuine issue of material fact as to whether the stated reasons were pretextual. In so finding, the court rejected the plaintiff's attempt to show pretext by pointing out that the fitness for duty examination declared him fit for duty and not a danger to himself or others, reasoning that the results of the evaluation were irrelevant because (1) the City fired the plaintiff for threats he had made in the past, rather than the danger of future violence, and (2) the City gave other reasons for the termination, such as plaintiff conducting personal business at work and making disparaging remarks about others, which were unrelated to the fitness for duty evaluation results.

In regards to the retaliation claim, the plaintiff argued that pretext was established because the City had tolerated his bad behavior for years before his protected activity and because of the temporal proximity between the protected conduct and the termination. The court rejected both of these arguments. First, the court found that the City's toleration of the plaintiff's prior conduct was immaterial because although the City was previously aware of some misconduct, it was not aware of the severity and scope of the misconduct, which is what led to the termination decision. Additionally, because the investigation which uncovered the further misconduct was prompted by another incident instigated by the plaintiff, the court found the City's failure to fire the plaintiff sooner did not establish pretext. Finally, in regards to the temporal proximity between the protected conduct and the termination, the court noted that although very close temporal proximity between a protected activity and an adverse employment action can be sufficient to establish a causal link between the two to support a prima facie showing of retaliation, timing alone cannot refute a company's stated legitimate reasons for a termination. And, in this case, the new information revealed by the City's investigation defeated any causal inference that might follow from the temporal proximity between the protected activity and termination.

The close timing of events like this often makes terminations, under such circumstances, more risky. This case demonstrates that an adverse employment action can be taken against an employee, even one who has engaged in a recently protected activity, if the facts warrant.