Retaliation: Court Green-Lights Lawsuit by Employee Fired for Complaining that Co-Worker Was Harassed; Avoiding Retaliation Claims

Freddy Hernandez, a lead technician for Spacelabs Medical Inc. in Chatsworth and then in Redmond, Wash., was abruptly terminated after 20 years on the job—just weeks after he reported that a supervisor harassed a co-worker. We’ll explain why the Ninth Circuit Court of Appeals, which covers California, said Hernandez can sue Spacelabs for retaliation.

Surprise Termination

A female co-worker, Salita Sam, confided in Hernandez that supervisor Ron Pray sexually harassed her. When Pray saw Hernandez talking to Sam, he warned Sam to stay away from Hernandez. Then Hernandez reported the alleged harassment to human resources manager Cathy Lasher, who launched an investigation and confronted Pray with the harassment allegations.

A few weeks later, Hernandez was fired. His termination letter cited several faulty repairs he allegedly made. Pray made the recommendation to terminate Hernandez, although Spacelabs contended Lasher and Pray’s supervisor, Bill Reeves, were also involved in the discharge decision.

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Employee Claims Retaliation

Hernandez sued Spacelabs, claiming he was fired because he complained about Pray’s alleged harassment of Sam. He said he didn’t make the errors noted in the termination letter—and even if he had, they were common oversights that Spacelabs normally wouldn’t fire anyone over. After a trial court dismissed the case, Hernandez appealed.

Retaliation Claim Sent to Jury

Now the Ninth Circuit has ruled that Hernandez’s case can go to a jury. To establish retaliation, the employee must show a link between the complaint and the adverse action. The court explained that a jury could find Pray knew or suspected that Hernandez reported the harassment to Lasher, and that there was a connection between Pray’s knowledge of the complaint and the termination. Hernandez offered evidence that Pray believed Hernandez and Sam discussed the alleged harassment and that Pray was upset about the conversation. Plus, several of Hernandez’s co-workers, including one who was close to Pray, knew Hernandez reported Pray’s conduct.

The court explained that the involvement of Lasher and Reeves in the termination process didn’t remove the taint of Pray’s retaliatory intent in recommending the discharge. That’s because there was no evidence that either manager made a substantive or independent review of Pray’s decision.

Finally, said the court, a jury could find that Spacelabs’ reasons for the termination were untrue. The court pointed to the suspicious timing of the termination and evidence the alleged repair errors wouldn’t ordinarily have led to discharge.

Avoiding Retaliation Claims

Here are some tips that can help you avoid similar retaliation claims:

 

1. Review decisions. It appears that Spacelabs’ key mistake was failing to meaningfully review the termination decision. To prevent similar problems, have a higher-level manager independently evaluate sensitive termination or disciplinary decisions.

    

2. Ensure consistency. The court gave substantial weight to Hernan- dez’s argument that the errors cited in the termination letter weren’t terminable offenses. Check that the discipline is consistent with discipline imposed in the past for similar offenses as well as with your written policies and procedures.

    

3. Let time pass. The court pointed to the “suspicious” timing of Hernan- dez’s discharge only weeks after he reported the harassment. If you have valid reasons for taking adverse action against an employee who has recently complained, keep in mind that the more time that passes between the employee’s complaint and the discipline, the less likely a jury will be to view your action as retaliatory.