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Employers, Take Note: Sequence of discharge contemplation and protected activity is important

Understandably, employers are often reluctant to make adverse job decisions concerning employees after the employee has made a complaint of sexual harassment or discrimination. A recent case in the Kentucky Court of Appeals demonstrates the importance of documentation and timing in these circumstances, and how they made the difference for the University of Louisville Athletic Association, Inc.

Mary Banker, a former employee of the University of Louisville Athletic Association, Inc., sued her former employer for “retaliation” under the Kentucky Civil Rights Act. Banker claimed that she was fired because she complained of gender and sexual discrimination to ULAA’s human resources department. At a jury trial, she was awarded $300,000 in emotional distress damages or lost wages, and her attorney was awarded $149,325 in fees. On appeal, however, the Kentucky Court of Appeals overturned the jury verdict and attorney fee award and dismissed Banker’s case altogether. What led the Court of Appeals to reverse this decision in favor of the employer?

Sequence of events

ULAA employed Banker as an assistant men’s and women’s track and field coach. Banker had a nine-month contract with ULAA from Sept. 5, 2007, to June 30, 2008. On April 22, 2008, before her contract expired, Banker made an oral complaint of gender and sexual discrimination to the ULAA’s “Affirmative Action/Sexual Harassment Officer,” who began an investigation of Banker’s claims. On May 15, 2008, Ron Mann, the head men’s and women’s track and field coach, notified Banker that ULAA had decided not to renew her contract. Banker filed a lawsuit claiming that her April 22, 2008 complaint resulted in the May 15, 2008 nonrenewal of her contract.

The Kentucky Court of Appeals found that undisputed evidence introduced at trial demonstrated that the decision not to renew Banker’s contract was contemplated as early as April 16, 2008, prior to Banker’s complaint. Specifically, the head track and field coach, Ron Mann, and Senior Athletic Director Julie Hermann met on April 16, 2008, and discussed concerns regarding Banker’s contributions and how her unprofessional behavior was affecting team and staff dynamics, which was corroborated by an email written by Hermann to others in the athletic department. Consequently, the Court of Appeals held that this undisputed evidence provided a legitimate, non-retaliatory reason for the nonrenewal of Banker’s contract.

When the writing is on the wall

The Kentucky Court of Appeals determined that ULAA was not liable for retaliation because undisputed evidence demonstrated that ULAA had at least contemplated (if not fully decided) not to renew Banker’s contract prior to her complaint. Further, the Kentucky Court of Appeals noted ULAA had offered a legitimate, non-retaliatory reason for not renewing Banker’s contract: lack of performance and unprofessional behavior, which was not rebutted by Banker at trial. The Court of Appeals ruled, quoting the United States Supreme Court, that “[e]mployers need not suspend previously planned transfers [or other decisions concerning employees] upon discovery that a [lawsuit or complaint] has been filed, and their proceeding along lines previously contemplated, though not yet definitively determined, is no evidence whatever of causality.” The Court of Appeals explained that “an employer should not be put at the mercy of an underperforming employee, who could see the writing on the wall and make a complaint so as to be put in a protected position against termination.” Because ULAA had already contemplated Banker’s termination of employment before she had ever made a complaint, her complaint did not cause her termination.

In cases where an employee sees the writing on the wall and files a complaint to avoid discharge, if the employer has well-documented evidence that it had already decided to terminate the employee’s employment (or at least such a decision was contemplated) prior to the complaint, and the decision is supported by a legitimate, non-retaliatory reason, such as poor performance or unprofessional conduct, it will have a stronger basis to defend against a lawsuit.

If you have questions about discharging an employee or protected activity, please contact the Labor and Employment group at Bingham Greenebaum Doll LLP.

DISCLOSURE REQUIRED BY CIRCULAR 230. This Disclosure may be required by Circular 230 issued by the Department of Treasury and the Internal Revenue Service. If this article, including any attachments, contains any federal tax advice, such advice is not intended or written by the practitioner to be used, and it may not be used by any taxpayer, for the purpose of avoiding penalties that may be imposed on the taxpayer. Furthermore, any federal tax advice herein (including any attachment hereto) may not be used or referred to in promoting, marketing or recommending a transaction or arrangement to another party. Further information concerning this disclosure, and the reasons for such disclosure, may be obtained upon request from the author of this article. Thank you.



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