Under employment laws, employers are prohibited from retaliating against employees who participate in a number of protected activities. One such protected activity is complaining about or reporting potential unlawful discrimination in the workplace. If an employee claims he or she was disciplined, demoted, or terminated for complaining of discrimination, the employer must present a valid, unrelated reason for the adverse employment decision. Then, the employee has the burden to show that the reason given by the employer was merely pretextual and meant to hide the true retaliatory motives. In a recent case, a Court of Appeals reviewed a company’s alleged reasons for terminating an employee and found that, since the reasons kept changing, it may be a sign that the termination was, in fact, retaliatory.
Background of the Case
Zann Kwan worked at Andalex, a small real estate firm specializing in casino and other commercial properties. She stated that on September 3, 2008, she asked her supervisor why she was treated differently with regard to salary raises and bonuses than the men in the office. Three weeks later, Kwan was terminated from Andalex. She brought claims of gender discrimination, a hostile work environment, and retaliation for complaining of gender discrimination. The lower court dismissed all of her claims for various reasons. The Court of Appeals agreed with the dismissal regarding the discrimination and hostile work environment issues, however found there was enough evidence to allow her retaliation claim to succeed.
Signs Pointing toward Retaliation
First, the Court of Appeals found the termination came only three weeks after her inquiry into potential gender discrimination. However, temporal proximity is not enough to prove retaliation, so the court turned to the company’s alleged reasons for firing Kwan. The following are some of the changing reasons given for Kwan’s termination at different times by different Andalex executives throughout the lawsuit process:
-Kwan’s skill set became obsolete because the company changed business focus to international investments.
-Kwan had poor performance and bad behavior.
-Kwan made an error on a project regarding a financial model for equity funding.
-Kwan was late in presenting financial models for acquisitions in Argentina and Mexico.
-Kwan conducted herself unprofessionally at business meetings.
-Kwan failed to keep regular business hours by arriving to work late, leaving early, and taking extended lunch breaks.
Though different Andalex executives asserted the above reasons at different times, very few were included in the company’s response to the Equal Employment Opportunity Commission (EEOC). Furthermore, an employee negated the claim that Kwan’s skills became obsolete by stating in a deposition that the business focus of the company changed prior to Kwan’s hiring date. Finally, evidence shows that Kwan kept regular business hours except for informing her supervisor she was leaving work 45 minutes early one day—the day before she was fired. Overall, the court found the company’s reasons for termination inconsistent and changing, therefore allowed the retaliation claim to proceed to trial.
As you can see, retaliation cases can get complicated. If you believe you have been retaliated against, you should contact HKM Employment Attorneys to discuss a possible case.