A termination within three months of an employee’s EEOC charge, combined with a claim that the employer increased its scrutiny of that employee after his charge was filed was enough to prevent summary judgment–even where the employer had refrained from terminating the employee at its first opportunity following his charge. Hamilton v. GE.
Jarrett Hamilton sued GE alleging that he was terminated in retaliation for filing an age-discrimination charge with the EEOC approximately three months earlier. He claimed that after he filed the charge, the company intensified its scrutiny of his work. Of course, he filed the charge while on a 30-day suspension that had been agreed to after he had been terminated while under a Last Chance Agreement (LCA). The Company did not fire him when the first opportunity to do so arose after he filed the charge but later terminated him for what it said was unacceptable conduct, including refusing work directions from a supervisor and using “unacceptable foul and abusive language.”
Finding evidence to support Hamilton’s allegation that the level of scrutiny of his work increased greatly after he filed his charge, a two-judge majority of a Sixth Circuit panel was not persuaded by the lower court’s reasoning that “from the time of the LCA on, GE understandably supervised Hamilton’s work carefully.” Thus, in reversing summary judgment, the Sixth Circuit “h[e]ld that this temporal proximity of less than three months combined with the assertion that GE increased its scrutiny of Hamilton’s work only after the EEOC complaint was filed are sufficient to establish the causation element of a prima facie case of retaliatory termination.” The majority also rejected GE’s argument that its decision not to terminate Hamilton at the first opportunity following his charge established that it did not retaliate against him. Although there were no facts suggesting that this had occurred, the Court reasoned that employers could insulate themselves from such liability by first offering favorable treatment and then waiting for another chance to terminate the employee if it held that GE’s “favorable treatment” of Hamilton defeated his retaliation claim.
The dissent strenuously disagreed with the majority’s conclusions: “Surely an employer may more closely observe an employee who is returning from sanction, particularly one like Hamilton, who was working under a Last Chance Agreement and had been suspended and terminated in the past.” Unfortunately, as the dissent also observed, “[t]the majority’s holding merely encourages sanctioned employees like Hamilton to file discrimination charges, thereby obtaining ‘instant immunity’ from their employers’ supervision and punishment.”
The Hamilton decision puts Ohio, Michigan, Kentucky and Tennessee employers in a precarious place once an employee has filed a discrimination charge. Indeed, the majority’s conclusion, as characterized by the dissent, that “sufficient facts suggest that GE waited for a ‘legal, legitimate reason [to fire him] to fortuitously materialize’ and then used that reason ‘to cover up [its] true, longstanding motivations’ of retaliation” demonstrates that GE did not help itself by taking what would appear to have been a prudent restrained course of action with respect to a troublesome employee. As the dissent complained, such conclusion ignores Hamilton’s significant disciplinary history, which preceded his discrimination charge, and essentially turns the statute’s anti-retaliation provision into “a blindfold or ‘gag-order’ on an employer’s ability to properly supervise its employees, particularly employees who have decisively demonstrated that they require closer supervision.” In light of the Hamilton decision, employers should be particularly careful in supervising and disciplining employees who have filed discrimination charges. Although the Hamilton decision may seem wrong-minded on its facts, it does tend to substantiate conventional wisdom when it comes to avoidance of retaliation suits: Treat employees who have filed discrimination charges as you would treat any other employee – no better and no worse since both can support a finding of retaliatory animus under Sixth Circuit law.