Termination Of Disruptive A Employee Is Not Retaliation

A recent decision of the Second Circuit of the Court of Appeals held that an employer can escape liability for a claim of retaliatory discharge if it can show that it terminated an employee based on the disruptive manner in which the employee pursued her/his discrimination complaints.

In Matima v. Celli, No. 97-9451, 98-7199, 2000 WL 1340336 (2d Cir. Sept. 18, 2000), the employee was a black, South African national who believed that his employer subjected him to racial discrimination. Over the course of approximately one year, the employee alleged that his mere "satisfactory" ratings on performance evaluations and his failure to receive appropriate training, proper recognition and a promotion for his work as a pharmacist were the results of his supervisor’s racial bias. The employer promptly investigated these claims, found that each was without merit, and recommended instead that the employee participate in bi-weekly meetings with his supervisors and co-workers to improve communications, which he never did. Instead, he continued to make internal complaints to the employer which escalated in both content and form. He sent threatening letters to top executives, repeatedly berated supervisors and executives during working hours, and accused his co-workers of making threats on his life.

The employer responded to this behavior by issuing a warning letter that reiterated the proper procedure for filing an internal complaint and emphasized that failure to correct his behavior could subject him to discipline up to and including termination. Unfortunately, his behavior became more combative and disruptive, and he was terminated for his "continued violation of the Company Rules." The employee then filed a complaint in the U.S. District Court for the Northern District of New York alleging both discrimination and retaliation. After the jury found that the employer was not liable on either charge, the employee appealed the decision to the Second Circuit Court of Appeals.

In affirming the jury’s findings, the Second Circuit Court stated that while an employee is privileged to report and protest workplace discrimination, not all forms of protest are protected by Title VII’s prohibition on retaliation. For example, "[a]n employer does not violate Title VII when it takes adverse employment action against an employee to preserve a workplace environment that is governed by rules, subject to a chain of command, free of commotion, and conducive to the work of the enterprise." Therefore, since insubordination and disruptive conduct are legitimate reasons for firing an employee, the mere allegation of discrimination in the workplace does not give the employee a super-protected status, nor does it vitiate the right of the employer to terminate an employee on those bases.

This decision makes clear that an employer has a right to maintain an efficient and harmonious working environment despite allegations of unlawful conduct and discrimination. A good rule of thumb is: if an employee would be terminated for his insubordination and/or disruptive behavior, the fact that such behavior is in connection with a complaint of discrimination will not automatically turn the termination into a retaliatory discharge.

Of course, consistency is critical. An employer cannot terminate an employee for disruptive behavior related to complaints of discrimination or harassment if the employer has not terminated an employee for disruptive behavior, which is similar but unrelated to complaints of discrimination or harassment. In litigating these cases, the "comparators" often are a key factor that employers should focus closely on before terminating an employee in these circumstances.