5th Cir. Update: Employee Lies, Resists During Investigation; Employer Still on the Hook for Retaliation

office-spaceIn a second pro-employee opinion this February, the Fifth Circuit ruled that an employee’s “mild resistance” during an internal investigation does not provide an independent reason for termination when the investigation is spurred by a retaliatory motive.

The facts were pretty simple.  An African-American machinist complained of his supervisor racially harassing him.  The company investigated but found nothing.  A month later, a co-worker and another supervisor decided to conduct a “sting operation” and catch the employee selling pornographic materials on the company premises. When confronted, the employee denied selling the materials, claimed the envelope in his locker had been planted, and refused to allow the search of his car.   The next day, he was terminated “for a serious violation of company policy.”

The district court determined that the internal investigation was motivated  by the desire to retaliate against the employee for his racial discrimination complaint because: (1) other employees had apparently sold pornography on the premises without punishment; (2) there was no clear rule prohibiting  the sale of pornography that would require termination rather than a warning; and (3) several witnesses were unsure about the nature of the employee’s violation and changed their position a number of times.  However, the judge concluded that the employee’s termination was justified independent of any other reason because he “resisted the investigation by leaving before [his] car could be properly searched and by lying to his supervisor about his activities.”

The Fifth Court, however, overturned the lower court’s ruling finding that the employee was terminated as the result of his supervisor’s retaliatory actions and the fact that he “mildly” resisted the investigation was not a superseding cause of his termination. The following statement provides a clear look into the Court’s reasoning:

“We decline to … provide an incentive to supervisors motivated by retaliatory animus to initiate groundless investigations with the purpose of causing the targeted employees to resist them, thereby leading to the employer’s adverse actions.” 

BOTTOM LINE FOR EMPLOYERS:  According to the Fifth Circuit, a supervisor cannot start a groundless internal investigation as a retaliation for employee’s previous discrimination complaint and then, when employee resists investigation, fire him. Thus, a company should always make sure that the person who reports a violation of a company policy by another employee, does not have a self-serving retaliatory motive and that such a person is not in charge of or leading the internal investigation process. 

Leiza Dolghih is the founder of Dolghih Law Group PLLC.  She is board certified in labor and employment law and has 16+ years of experience in commercial and employment litigation, including trade secrets and non-compete disputes. You can contact her directly at leiza@dlg-legal.com or (214) 531-2403.

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