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Employment Law Blog
James Tarquin, P.A
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Proving A Retaliatory Discharge By Showing It Is Unlikely The Employer Would Have Acted On The Basis Of The Reason Given For Termination

The retaliation sign

Under Title VII of the Civil Rights Act of 1964 (Title VII), employees are protected from retaliation for opposing discrimination or harassment on the basis of race, national origin, sex, pregnancy, and religion in the workplace.  When attempting to prove a retaliatory discharge claim, employees can establish that the proffered reason for the termination is a pretext for retaliation by showing that it was unlikely the employer would have acted on the basis of the proffered reason.  This does not mean that the employee must show that the proffered reason for the discharge had no basis in fact or was made up.  Rather, as the decision by the U.S. District Court for New Jersey in Yeager v. Covenant Security Services, Ltd., 2017 WL 2560340 (D. N.J. June 13, 2017), an employee can demonstrate that the proffered reason for the discharge is a pretext for retaliation by showing that the employer did not previously respond to such problems in the way it responded in the employee’s case.

Employee Assists Co-Employee In Retaliation Lawsuit

In that case, David Yeager (Yeager) brought a retaliatory discharge lawsuit against Covenant Security Services, Ltd. (Covenant).  Yeager claimed that he was fired in retaliation for his support of a former co-employee’s retaliatory discharge lawsuit against Covenant.

During their employment with Covenant, Meegan Wadleigh (Wedleigh) made several complaints of sexual harassment against another Covenant employee to Yeager.  Although he documented the complaints, Yeager did not immediately report the complaints to Human Resources as required by Covenant’s sexual harassment reporting procedures because, in his experience, Covenant did not take sexual harassment complaints seriously unless there was corroborative evidence.  About two weeks after her last complaint to Yeager, Covenant terminated Wadleigh’s employment due to her purported poor performance and behavioral issues.  A few days after Wadleigh’s discharge, Yeager notified Human Resources that Wadleigh had made several complaints of sexual harassment to him and he had informed Wadleigh to make her complaints to Human Resources. 

About five months after she was fired, Wadleigh filed a retaliatory discharge lawsuit against Covenant.  Some nine months after the lawsuit was filed, Wadleigh and Covenant participated in a court ordered mediation.  During the mediation, but outside the presence of Covenant’s representatives, Yeager spoke to the mediator over the telephone.  Yeager notified the mediator that Wadleigh had reported complaints of sexual harassment to him on multiple occasions during her employment with Covenant and he had documented the complaints.  The mediator relayed this information to Covenant’s representatives.   

After being informed by the mediator of Yeager’s comments, Covenant commenced an investigation into Yeager’s actions regarding Wadleigh’s sexual harassment complaints.  As part of the investigation, Covenant’s attorneys met with Yeager.  Yeager confirmed that Wadleigh had made complaints of sexual harassment to him on several occasions during her employment with Covenant.  Yeager said that he did not immediately report the complaints “because there were no third-party witnesses and he did not have enough evidence to satisfy Covenant.”  When Yeager acknowledged that he had spoken to the mediator during the mediation, one of Covenant’s attorneys “blew a gasket” and told Yeager, in “expletive-ridden terms, he should not talk to anyone about Wadleigh’s lawsuit.”  Less than one month after his meeting with the attorneys, Covenant fired Yeager for failure to comply with its sexual harassment reporting procedures.

Covenant filed a motion with the trial court seeking dismissal of Yeager’s retaliation claim.  In doing so, Covenant asked the trial court to find that Yeager’s retaliation claim failed as a matter of law and Yeager was not permitted to present his case to a jury.  The trial court denied Covenant’s motion for dismissal and found that Yeager’s retaliatory discharge claim must decided by a jury.

No Action Until Employee Engages In Statutorily Protected Activity

In denying Covenant’s motion for dismissal, the trial court found that Yeager engaged in activity protected by Title VII”s retaliation clause by participating in the mediation and indicating his willingness to assist Wadleigh in her lawsuit against Covenant.  The trial court further found that it was “precisely” Yeager’s participation in the mediation “that triggered the investigation into [his] conduct which lead to his termination.”  However, the trial court pointed out, Covenant was on notice that Yeager may have violated its sexual harassment reporting procedures long before the mediation took place.  Nonetheless, the trial court explained, Covenant “did nothing” and “choose not to investigate the situation or discipline [Yeager] until [Yeager] participated in the [ ] mediation and expressed his willingness to assist Wadleigh in her litigation against Covenant.”  In other words, Covenant “ignored [Yeager’s] possible violation of its reporting policies for anywhere between eight and thirteen months, yet immediately commenced an investigation into [Yeager] after he participated in the [ ] mediation against [Covenant’s] interests.” 

Because Covenant ignored Yeager’s possible violation of its sexual harassment reporting procedures for months and did not investigate Yeager’s actions until after he engaged in statutorily protected activity by participating in the mediation against Covenant’s interests, the trial court determined that a jury could reasonably find that it was unlikely Covenant’s real motive for firing Yeager was his violation of Covenant’s sexual harassment reporting procedures.  Instead, because Covenant ignored Yeager’s possible violation of its sexual harassment reporting procedures for months and did not investigate Yeager’s actions until after he engaged in statutorily protected activity by participating in the mediation against Covenant’s interests, the trial court determined that a jury could reasonably find that Covenant’s real motive for firing Yeager was to retaliate against him for engaging in statutorily protected activity by participating in the mediation against Covenant’s interests. 

Consultation With Central Florida Retaliation Lawyers

Based in Ocala, Florida and representing employees throughout Central Florida, we have substantial experience representing employees who have been retaliated for opposing discrimination or harassment in the workplace.  If you have been retaliated against or have questions about your protection from retaliation, please contact our office for a free consultation with our Central Florida employment retaliation attorneys.  Our employee rights law firm takes employment retaliation cases on a contingency fee basis.  This means that there are no attorney’s fees incurred unless there is a recovery and our attorney’s fees come solely from the monetary award that you recover. 

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