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Retaliation? Not if bias claim was bogus

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in Employment Law,Human Resources

The 11th Circuit Court of Appeals has overturned a jury’s $300,000 retaliation award, reasoning that the complaint that was the basis for the retaliation claim wasn’t based on a good-faith belief that discrimination had occurred.

Recent case: Aaron Howard, who is black, worked the overnight shift as a Walgreens pharmacist. Pharmacists worked 10-hour days for 7 days per week and then had a full week off. Howard, who was scheduled to work three days and then take four days off for a vacation, started calling in sick. He called in two days in a row and on the second day, allegedly told the company that he probably wouldn’t be in the next day, either.

On the third day, he indeed failed to show and his supervisor left a voice mail telling Howard that his job was in jeopardy since he hadn’t called in.

Howard didn’t call in until he was back from vacation and told his supervisor that he believed he was being discriminated against. Howard was terminated the next day for not following the call-in process.

He sued, alleging that he had complained about discrimination and then been fired in retaliation. A jury agreed and ordered Walgreens to pay Howard $300,000.

But the 11th Circuit Court of Appeals reversed the decision. It said Howard’s discrimination complaint hadn’t been a reasonable one. Therefore, it could not be the basis for a retaliation award. Being threatened with termination for not calling in wasn’t an adverse action and wasn’t plausibly related to Howard’s race.  (Howard v. Walgreen, No. 09-11823, 11th Cir., 2010)

Final note: This case should encourage employers. All too often, employees win retaliation cases even when it looks obvious that their underlying discrimination claims are bogus. Perhaps this is a turning point.

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