If you want to win your retaliation case, don't be a donkey.

Watch out -- if you show your a** too much, you may not win your retaliatory discharge case.

A federal judge in New Jersey granted summary judgment to an employer in a Title VII retaliation case. Happens all the time. But this plaintiff -- we'll call him "Ryan," because that's his name -- was fired after he had signed an affidavit supporting a co-worker's discrimination claim against the company, and after he had filed his own retaliation charge against the company.

In other words, plenty of "protected activity" to support a retaliatory discharge claim. In fact, Ryan apparently felt so good about his case that he moved for summary judgment against the employer. (This is unusual, although it does happen from time to time.)

So, what ruined it for him? He got caught making an a** of himself.

One day, a supervisor sent out an email that Ryan thought was extremely stupid. Ryan sent an email to a co-worker describing in detail just how stupid he thought this supervisor was. (WARNING: Do not read pages 2-3 unless you can tolerate strong language.)

Some time later, the co-worker resigned, and the company went into the co-worker's email to check on the status of his projects. While in his email, they found this colorful -- dare I say "asinine"? do I double-dare spelling it "assinine"? -- email from Ryan. Ryan was promptly told that his services were no longer required.

Don't forget to check out the July Employment Law Blog Carnival, hosted by yours truly. The theme is 1950's Summer Road Trip (on Route 66), featuring a virtual superhighway of great HR- and employment-law-related blog posts.

Generally, to win a retaliation case, you have to show (1) legally protected activity -- of which Ryan had tons, (2) adverse employment action -- and getting fired is clearly "adverse," so Ryan had that, too, and (3) a "causal connection" between the legally protected activity and the adverse employment action (uh-oh). In other words, the plaintiff in a retaliation case has to show that "more likely than not" he was fired/demoted/denied a raise/deprived of his red Swingline stapler because of his protected activity.

Sometimes an employee will engage in legally protected activity and then do something very boneheaded -- like quit working, tell the boss to drop dead, or steal or falsify documents.

QUESTION: If the employer fires him for that, is it retaliatory?

ANSWER: No. Duh.

As the judge pointed out, misconduct after legally protected activity "breaks" the "causal connection" between the protected activity and the adverse action. So if you engage in legally protected activity -- like filing a charge, or making an internal complaint of harassment or discrimination, or testifying truthfully on behalf of another employee -- but then follow it up by being an a**, then you could lose your job, followed by losing your retaliation case.

Instead, you should be on your very best behavior after doing anything "protected." That is the best way to (a) have a strong retaliation case if the employer ever takes action against you, and (b) better yet, never need to file a retaliation charge or lawsuit at all because your employer will love you as a model employee and keep you around until the day that you decide to quit or retire.

The judge in our case had some pretty strong language of her own for the plaintiff, calling his communication a "foul email," and saying that the NSFW* email was "one-of-a-kind in the annals of prose."

*Not Suitable For Work.

So, don't think your protected activity makes you immune from the standards of behavior that apply to everyone else. Just because you filed a charge doesn't mean you get to be an a**.

Finally, this case gives me a good excuse to provide the following public service message about emails and text messages:

  • They are forever, and they can almost always be traced back to you. (No plausible deniability.)
  • Once you've sent them, you lose control over who besides your intended recipient receives the message. Because of this thing called "forwarding."
  • Through forwarding, it is easy to exponentially increase the number of people who get your messages. That's how things "go viral."
  • So, act accordingly when sending electronic communications.

Robin Shea has 30 years' experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act). 
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