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Employment Law Blog
James Tarquin, P.A
As part of our commitment to assist and educate employees in fighting back against the abusive employment practices of employers, we offer a broad range of information about employment law issues in our employment blog

Smoking Gun Evidence: Direct Evidence Of A Retaliatory Motive

retaliation sign

Generally, courts have defined direct evidence of retaliation as evidence which proves the existence of a retaliatory motive without inference or presumption.  Stated another way, direct evidence of retaliation is a statement by an employee who was involved in the challenged employment decision which constitutes “smoking gun” evidence of a retaliatory motive.  For example, a statement by the decision-maker that the employee was fired because management did not want to deal with his or her complaints of sexual harassment any longer is direct evidence that the employee was fired in retaliation for complaining about sexual harassment.  When an employee presents direct evidence of a retaliatory motive and the jury believes the evidence, the employee has proven the ultimate issue of retaliation.  Because direct evidence, standing alone, is sufficient to prove a retaliation case, courts, such as the court in Lande v. Ogden Entertainment, Inc., 13 F.Supp.2d 1261 (M.D. Ala. 1998), have characterized direct evidence of retaliation as “somewhat of a nuclear bomb.”   

As observed by the U.S. First Circuit Court of Appeals in Hodgens v. General Dynamics Corp., 144 F.3d 151 (1st Cir. 1998), ” ‘smoking gun’ evidence is, of course, not required in order to prove [retaliation].”  Rather, as explained by the U.S. Fifth Circuit Court of Appeals in Fabella v. Socorro Independent School Dist., 329 F.3d 409 (5th Cir. 2003), “[u]sually, in the context of a retaliation claim, the employer refrains from expressly stating that an impermissible criterion influenced his decision to expose the plaintiff to an adverse employment action, and so direct evidence of an employer’s allegedly retaliatory intent is rarely available.”  “Because an employer will rarely admit retaliatory motives in firing an employee,” as the U.S. Tenth Circuit Court of Appeals pointed out in Sanjuan v. IBP, Inc., 160 F.3d 1291 (10th Cir. 1998), “retaliatory discharge cases generally must be proven by circumstantial rather than direct evidence.”  Although direct evidence of the employer’s retaliatory intent frequently does not exist in retaliation cases, the U.S. Eighth Circuit Court of Appeals in Young-Losee v. Graphic Packaging Intern., Inc., 631 F.3d 909 (8th Cir. 2011) found the employer admitted to a retaliatory intent.

Employee’s “Nuclear Bomb” Evidence Of Retaliation

In that case, Rebecca Ann Young-Losee (Young-Losee) brought a retaliation claim under Title VII of the Civil Rights Act of 1964 (Title VII) against Graphic Packaging International, Inc. (GPI).  In April 2008, Young-Losee began being harassed by another employee who called her “retarded,” “crippled,” and “stupid.”  Within days after the harassment commenced, Young-Losee complained to the plant supervisor, a production manager, and a human resource representative.  Young-Losee also filed a formal complaint of harassment with the human resources department.  On May 6, 2008, Young-Losee met with management to discuss her complaints.  At the meeting, the plant manager interrupted Young-Losee and did not allow her to speak.  Eventually, the plant manager wadded up Young-Losee’s written complaint, threw it in a garbage can, and told Young-Losee that it was “total bs.”  The meeting ended when the plant manager pointed to the door and told Young-Losee, “I want you out of here,” and said that he never wanted to see her again. 

Young-Losee believed that she had been fired at the meeting.  She left work after the meeting and did not return to work the next day.  On May 7, Young-Losee e-mailed a marketing manager, stating that she was an employee “as of yesterday,” but was “pushed out the door” after filing a formal complaint. On May 8, a human resources representative called Young-Losee and told her that she was not terminated.  The human resources representative also told Young-Losee that she would investigate the complaint and follow up with her.  After the human resources representative completed her investigation, she called Young-Losee and told her that she should return to work.  Young-Losee said she would not return because she was unsatisfied with GPI’s actions.  The human resources representative told Young-Losee that GPI would treat her refusal to return to work as a voluntary resignation, effective May 15, 2008.  Young-Losee never returned to work at GPI.  The trial court dismissed Young-Losee’s retaliation claim.  On appeal, the Eighth Circuit reversed the trial court’s dismissal and reinstated Young-Losee’s retaliation claim.

  The Eighth Circuit found that Young-Losee had presented direct evidence that she was fired in retaliation for making a formal complaint of harassment.  In support of its conclusion, the appellate court pointed to the plant manager’s behavior at the May 6 meeting where he wadded up her written complaint, threw it in the garbage can, called it “total bs,” told her to leave, and said he never wanted to see her again.  “These facts,” the appellate court reasoned,” constituted “direct evidence of a causal link between the filing of the complaint and her firing.”  The appellate court also rejected GPI’s argument that Young-Losee did not suffer an adverse employment action because she was not fired, was in fact paid through May 15, and was offered a return to work.  The Eighth Circuit explained that “[b]eing fired for making a discrimination complaint—even if rescinded after two days—might well dissuade a reasonable employee from making a complaint of harassment.”  Thus, the retaliation Young-Losee endured was “more than petty slights or minor annoyances that often take place at work and that all employees experience.”

  Consultation With Employment Law Attorney   

We have extensive experience representing employees who have been retaliated against for opposing discrimination or harassment in the workplace.  If you have been retaliated against, or have questions about an employer’s response to your complaint of discrimination or harassment in the workplace, please contact our office for a free consultation.  We take 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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