There’s some good news for employers concerned about retaliation after an employee participates in protected activity such as testifying in another employee’s discrimination lawsuit.
If a substantial amount of time has passed since the employee’s testimony, any disciplinary action you take probably won’t be enough to form the basis of a retaliation claim.
Recent case: Kimberly Bartos worked as a mental health worker at a Pennsylvania correctional institution for about four years. Early on, she gave a deposition in another employee’s sex discrimination lawsuit against the prison.
Bartos had disciplinary problems. She was warned after she screamed obscenities at prisoners. She was also disciplined for failing to work a scheduled shift.
Bartos then testified in yet another lawsuit. A few months later, she was terminated for placing an inmate on suicide watch without authorization and forging a doctor’s signature on the order.
She sued, alleging retaliation for her testimony in the other cases.
The court tossed out the case, concluding that too much time had passed between either of the depositions and the incidents for which she was disciplined. That meant her lawsuit couldn’t even make it past the initial phase of pretrial legal activities. The employer didn’t even need to show it had good reason to terminate her. (Bartos v. MHM Correctional Services, No. 11-1936, 3rd Cir., 2011)
Final note: Of course, you must be prepared to defend all disciplinary actions with evidence that there was a legitimate business reason for the discipline.
That way, if a federal judge thinks the time between the protected activity and the discipline was short enough to warrant going further with the lawsuit, you will still have a defense—namely that you disciplined the employee for legitimate reasons and not in retaliation.
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