Beware retaliation following internal bias investigation

Sometimes, timing is everything. That’s certainly true when it comes to employer investigations into em­­ployee discrimination complaints.

The 7th Circuit, which covers Illinois, has held that employees who participate in employer internal investigations before administrative charges or lawsuits have been filed are not protected from retaliation. It’s different, however, after such charges have been filed.

In Gomez v. Restaurant One Limited Partnership, d/b/a Spiaggia Restaurant and Café, (No. 10 C 1850, ND IL, 2012), the Northern District of Illinois considered for the first time whether an employee who participates in an employer’s internal investigation after an EEOC charge or Title VII lawsuit has been filed is protected from retaliation.

The answer: He is.

After investigation, a change

Jose Gomez worked as a cheese steward at Spiaggia in Chicago’s Gold Coast neighborhood.

In January 2008, Gomez participated in Spiaggia’s investigation into a race discrimination lawsuit filed by a co-worker who had been fired after a customer complained about her to Chad Bertelsman, the senior dining room manager. During his interview with Spiaggia’s attorney, Gomez said Bertelsman treated the co-worker in an unfair, rude and condescending manner, and that Bertelsman often behaved in a discriminatory way toward other employees, too.  

After the interview, Bertelsman asked Gomez what he had said, but Gomez avoided answering. Then, Gomez noticed a change in Bertels­man’s behavior toward him. Gomez claimed that the previously friendly Bertelsman became rude, condescending and critical after the interview.

In July 2008, in an incident unrelated to the investigation, Gomez failed to charge a customer for a bottle of wine. Bertelsman reviewed Gomez’s disciplinary history and then emailed Jason Goldsmith, the general manager. Bertelsman recommended suspending Gomez for two weeks, and also wrote that he would not be opposed to firing him. Goldsmith agreed and decided to terminate Gomez.

An act of retaliation?

Gomez filed a lawsuit against Spiaggia, claiming, among other things, that his termination violated Title VII. Gomez argued that Bertelsman’s email was an act of retaliation for participating in the earlier internal investigation related to the race discrimination lawsuit.

Spiaggia moved for summary judgment on Gomez’s retaliation claim, but the Northern District of Illinois denied its motion.

Title VII prohibits an employer from discriminating against an em­­ployee who “made a charge, testified, assisted, or participated in any manner in an investigation, proceeding or hearing” under Title VII. To prove his retaliation claim, Gomez needed to present evidence of a statutorily protected activity and a causal connection between the protected activity and a materially adverse action.  

Gomez alleged that speaking with the Spiaggia lawyer who investigated the race discrimination lawsuit was protected activity.

How other courts have ruled

The 7th Circuit has held that participating in an investigation where no formal charge of discrimination has been made to an official body authorized to enforce Title VII (such as a court or the EEOC) is not a statutorily protected activity.

However, the 7th Circuit had not decided the issue in this case: Whether participation in an internal investigation that began after an EEOC charge has been filed constitutes participation in an official investigation.  

The court noted that the 6th and 11th circuits have held that participation in an internal investigation conducted in response to a charge is protected by Title VII. Moreover, the 8th Circuit noted that it would likely agree with the 6th and 11th circuits on this issue.  

The court reasoned that no circuits have taken the opposite view, and that the 6th and 11th circuits’ decisions were persuasive.

Accordingly, it held that participating in an internal investigation begun in response to an EEOC charge or Title VII lawsuit is a statutorily protected activity. It decided Gomez’s interview with Spiaggia’s attorney in the wake of the discrimination lawsuit qualified as a statutorily protected activity.

The court also concluded that Gomez had enough evidence for a jury to find a causal connection between his protected activity and his termination under the “cat’s paw” theory of liability. A jury could infer that Bertelsman’s abrupt change in behavior after Gomez’s interview showed that he retaliated by recommending a suspension and raising the possibility of termination.

What it means for employers

Retaliation lawsuits are on the rise. Employers must be prepared to defend against such claims.

Remember, employees who participate in investigations in response to a Title VII charge or lawsuit are protected from retaliation.

Before punishing employees who have engaged in protected activity, be prepared to show that your discipline was independent of and not motivated by any prior protected activity. Support your contention with good documentation, and be ready to show the decision was consistent with your usual practices.

Those steps will help minimize the risk of having to defend against a costly retaliation lawsuit.