Retaliation and "Temporal Proximity"

Here's an interesting fact pattern from a recent federal appeals court case (Walid el-Sayed v. Hilton Hotels (10-453-cv, 12/17/2010)): 

Employee complains of a discriminatory work environment based on his race and national origin. Employer begins an investigation into the employee and discovers that the employee had failed to report a prior job with one of the employer's other hotels in his job application.  Three weeks later the employee is discharged from employment.  The employee claims it was in retaliation for complaining of the discriminatory hostile work environment.  The employer claims it was because the employee had ommitted the prior-employment information from his job application.

As discussed below, the Court dismissed the case finding that mere "temporal proximity" is not sufficient to prove a case of retaliatory discharge.

Both federal and state law protect employees from being retaliated against because they file complaints of discriminatory conduct about themselves or others.  The courts use a "shifting burdens" standard to determine if their are sufficient facts to allow a retaliation claim to go to a jury. This shifting burdens standard requires the employee to make out, first, a "prima facie" case which includes four components:

(1) The employee was engaged in protected activity, such as complaining of discriminatory conduct;

(2) The employer was aware of that activity;

(3) The employee suffered an adverse employment action; and

(4) There was a causal connection between the protected activity and the adverse employment action.

Once the employee makes out a prima facie case, the burden then shifts to the employer to:  articulate a legitimate non-retaliatory basis for the adverse employment action.  Employers often rely upon their personnel manuals for proof that their is a legitimate non-discriminatory basis for the adverse employment action.

Once the employer satisfies that burden, the burden shifts again, back to the employee to prove that the articulated reason for the adverse employment action is a lie -- that it is "pretext."  If that burden is met, then the case is allowed by the courts to proceed to a jury.

In the recent Second Circuit case, the Court found that the "temporal proximity," that is the short period of time between the complaint of discrimination and the adverse employment action is sufficient to show the fourth element of the prima facie case (a causal connection between the protected activity and the adverse employment action). 

The Court found also that the employer had satisfied its burden when it showed that the omission in the job application was a dischargable offense.

Once the burden returned to the employee to show pretext -- that the employer's reason is not the real reason --, the Court dismissed the case finding that temporal proximity, while enough to satisfy the prima facie case burden, was insufficient, with nothing else, to prove pretext. 

The Court explains: 

"The temporal proximity of events may give rise to an inference of retaliation for the purposes of establishing a prima facie case of retaliation . . ., but without more, such temporal proximity is insufficient to satisfy appellant's burden to bring forward some evidence of pretext." 

Keep in mind that these facts have two interesting distinctions.  First, there was no question that the employee engaged in the misconduct (omitting the information on his job application) that the employer used as its justification for the discharge.  Second, the employee conceded that omitting this information from his job application was a dischargable offense.

Nathaniel K. Charny

Defamation in the Workplace

Here's a common question: Can I take legal action against my employer for defamation in the workplace? The answer is: maybe.

Under New York law, the elements of a defamation claim are: 

(i) a false statement; (ii) published to a third party without privilege or authorization; (iii) with fault amounting to at least negligence; (iv) that caused special harm or defamation per se.

In order to have a claim for defamation, the employee must be able to prove all four of these elements.  In the employment context, the most difficult element is the second element:  whether or not a special privilege applies to the communication.

New York Courts have long recognized a "common interest" privilege for otherwise defamatory statements within the employment context.  (Lieberman v. Gelstein, 80 NY2d 429 (1992)).  So, for example, a committee determining whether or not a college professor is going to receive tenure or the managers of a business making personnel decisions have some leeway in what they can say about the person, even if it is false.  The rationale for this privilege is that "so long as the privilege is not abused, the flow of information between persons sharing a common interest should not be impeded."  Constantine v. Teachers College, 116528/08 (2010).

But this leeway has limits.  When the offending statements are made "with malice," which means "with spite or ill will," the privilege is waived and you may have a claim for defamation.  Similarly, the privilege is waived if the statements are "made with a high degree of awareness of their probable falsity" (Liberman) and as with "malice," there will be no privilege protection and you may have a claim for defamation.

If you have a possible claim for defamation in the workplace, call Charny & Associates (845-876-7500) and let us give you a free consultation -- we'll listen to the facts and let you know what we think.

Nathaniel K. Charny

Misconduct and Eligibility for Unemployment Compensation

Here's a common question:  I was fired from my job because of alleged misconduct.  Am I entitled to unemployment compensation?  The answer is:  maybe.

In New York, a discharged employee is entitled to unemployment compensation unless they either quit or engaged in misconduct.  Misconduct for purposes of unemployment compensation is defined as "willful and wanton disregard of the employer's interest."  (In re Wlos, 839 N.Y.S.2d 330 (NYAD 2007)).  Just because you did not get along with your boss is not enough for a finding of misconduct. Even where a former employee's "personal traits provided a basis for discharge, but unless those traits rise to the level of misconduct, they are not a proper basis for the denial of unemployment insurance benefits."  (Llano v. Levine, 377 N.Y.S.2d 808 (NYAD 1976)).  Hence, just because the boss "didn't like your attitude and you didn't like hers," Raven v. Levine, 338 N.Y.S.2d 183 (NYAD 1972), a finding of misconduct is not warranted.

In order to find misconduct, the unemployment compensation board will look to whether or not the alleged misconduct adversely affected the employer's interest.  For example, if your job is taxicab driver and you refuse to accept a fare, you will be found to have engaged in misconduct.  (AB A-750-1284).

Another thing to consider is whether your conduct would "sustain a finding that the claimant should have realized that her conduct would probably provoke her discharge and there is certainly no substantial evidence to support an inference that the claimant desired to have her employment cease." (Raven, supra).  This notion of engaging in conduct that "provoked" your discharge is found only when the employee knew or should have known that his/her conduct would result in dismissal and engaged in the conduct anyway.

And what if the employer is claiming actual misconduct but it is just not true?  Well, the unemployment compensation process affords you the opportunity to participate in a hearing (usually by telephone) with an administative law judge, who will take testimony from both the employee and the employer and determine whether or not the misconduct occurred. 

 
The question of whether or not conduct in the workplace rises to the level of "misconduct" or "resignation" is a fact specific question.  Give Charny & Associates a call for a free consultation (845-876-7500) and we will let you know what we think and whether you have a claim for unemployment compensation benefits.

Nathaniel K. Charny

Wrongful Discharge for Filing a Complaint with Your Employer

The recently commenced Supreme Court term will address a conflict among the federal courts about what is required