When an employee senses that she may be in trouble and about to lose her job, she may begin to review the last year or so with an eye toward filing a pre-emptory lawsuit. If she suddenly remembers alleged acts of discrimination, she’s sure to complain. She may even seek legal advice on how to “set up” her employer for a retaliation lawsuit based on her complaint and subsequent termination.
But she won’t win in the end if her employer can show it made the decision to fire her before she ever complained.
Recent case: Amy Francisco worked for Verizon South from 1988 until she was laid off 20 years later. Francisco, who is black, was the lowest-performing employee in her five-employee group and was therefore chosen for termination during a reduction in force.
While rumors were circulating about the coming RIF, Francisco remembered an incident at a conference she attended three months earlier. There, a Verizon executive gave a presentation on the company’s achievements. He asked a volunteer to periodically hold up cue cards during his talk. They said things like “Cheer” and “Clap.”
Unfortunately, the executive was reusing cue cards from an earlier presentation with a “Phantom of the Opera” theme. One of the reverse sides included a noose from the opera. The volunteer accidentally showed the side of the card with the noose.
This, Francisco later alleged, was a racist act of intimidation, as nooses are symbols of antebellum bigotry.
Fortunately, Verizon was able to show each step of its RIF process. It convinced the court that it had made the decision to terminate Francisco before she complained about the incident. The court tossed out her case. (Francisco v. Verizon South, No. 10-2432, 4th Cir., 2011)