WRONGFUL DISCHARGE/DISCRIMINATION

Numerous employees are fired unfairly, but not all of these firings create the basis for a wrongful discharge lawsuit. Employers can act unfairly, vindictively, arbitrarily, and/or stupidly in firing an employee, but that doesn’t mean there is a cause of action for wrongful discharge. Whether a cause of action for wrongful discharge exists depends upon the employer’s reason for firing the employee, and whether by statute or case law a termination based on such a reason, is illegal. Of course, employers usually don’t admit that they fired an employee for an illegal reason. The issue usually becomes, what is the real reason for the employee’s termination, and is it an illegal reason? If so, then legal recourse may be possible.

What I look for here is what is the real reason - not the reason given by the employer, but what is the real reason for the termination, and is it an illegal reason. Corporations can only act through people, and sometimes managerial or supervisory employees have biases that cloud their judgment and which can result in an employee being fired for an illegal reason. Some examples of illegal reasons include firing the employee: because the employee is pregnant, or because the employee had jury duty, or because the employee had military service, or because the employee was injured on the job and filed a workers’ compensation claim, or because the employee or employee’s close relative is disabled, or because the employee is older and the employer wants younger employees, or because the employee is African American, Hispanic, or female, or because the employee has refused to violate the law, or because the employee has refused to go along with or has blown the whistle on the employer’s illegal activity. There are numerous, numerous other illegal reasons for a termination - too numerous to cover here.

It is important to realize that the illegal reason does not have to be the only factor motivating an employer’s actions. The illegal reason has to be only a substantial factor, or a motivating factor.

In determining whether legal recourse is possible, the big question, of course, is whether there is evidence of a connection between the illegal reason and the employee’s termination. Being able to prove the reason given by the employer is a trumped up lie is a step in the right direction, but typically, there needs to be other proof such as direct evidence or circumstantial evidence that would establish that the real reason for the termination is the illegal reason. For example, circumstantial evidence in a pregnancy discrimination case would be the employee is fired for a trumped up reason the same day or shortly after she informed the employer she was pregnant, or that the employer started treating her differently (in a bad way) after she told him she was pregnant. In a military firing case, circumstantial evidence could be that the employee is fired the same day (or shortly after) he or she turns in orders to report for drills. In a race discrimination case, circumstantial evidence could be the employer treats African Americans different (worse or more harshly) than Caucasians.

Many states, including Tennessee, recognize what is called the "Employee at Will" Doctrine. Essentially, this Doctrine is supposed to stand for the proposition that an employer may fire an employee (who does not have a contract) at any time, for any reason - good reason, bad reason, or no reason. As stated by the Tennessee Supreme Court:

However, there are numerous exceptions to the "Employee at Will" Doctrine where employees who are fired have legal recourse: It is not possible in this short paper to describe all exceptions to the Employee at Will Doctrine. Suffice it to say, there are numerous, numerous exceptions. As explained by the Tennessee Supreme Court:

In fact, in my opinion, there are so many exceptions to the "Employee at Will" Doctrine, that prudent employers cannot rely on the doctrine to provide much protection from suit. As a practical matter, the "Employee at Will" Doctrine is dead. I say, may it rest in peace!

Initially, the employee has the burden of producing what is known as a "prima facie" case

of discrimination (or retaliation). This is done for example by presenting circumstantial, direct, or statistical evidence from which the illegal reason, i.e., discrimination (or retaliation), may be inferred. Blackwell v. Sun Electric, 696 F.2d 1126 (6^th Cir. 1983). There are many different types of evidence that can be utilized in proving discrimination including evidence of disparate treatment and/or smoking gun admissions of discrimination (or retaliation) and/or admissions showing bias and other facts.

Once the elements of a prima facie case of discrimination or retaliation is met, a mandatory rebuttable presumption of actual discrimination/retaliation in favor of the employee is created, thereby shifting the burden of production to the employer to rebut the presumption with evidence that the employer's acts were the result of a legitimate reason, i.e., non-discriminatory (or non-retaliatory) reasons. --McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); and Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1084, 67 L.Ed.2d 207 (1981). Remember, under the Employee at Will Doctrine, it can be a good reason, a bad reason, a dumb reason, etc., just not an illegal reason.

In the event the jury finds that the employer met the burden of establishing a legitimate non-discriminatory (or non-retaliatory) reason for discharging the employee, then the burden again shifts to the employee to prove that the reason articulated by the employer is pretextual (or a cover up).

Courts have instructed us there are three ways in which an employee can demonstrate that the employer's articulated reasons are pretextual:

If the jury finds that the employee has presented a prima facie case, and that the employer has presented evidence that its actions were non-discriminatory (non-retaliatory), then the jury must decide the ultimate question of whether the employer, by and through its agents and employees, has intentionally discriminated (or retaliated) against the employee.

Under well established case law, the jury's disbelief of the reasons for termination put forth by the employer (particularly if the disbelief is accompanied by a suspicion of untruthfulness) may, together with a prima facie case of discrimination, suffice to show unlawful discrimination (retaliation). Rejection of the employer's proffered reasons for its actions will permit the jury, but not require the jury, to infer the ultimate fact of intentional discrimination. Proof that the employer's explanation is unworthy of credence is a form of circumstantial evidence that is probative of intentional discrimination, and it may be quite persuasive. --St. Mary's Honor Center v. Hicks, 509 U.S. 502, 511, 113 S.Ct. 2742, 2749, 125 L.Ed.2d 407 (1993); Reeves v. Sanderson Plumbing Products, Inc, 530 U.S. ____, 68 U.S.L.W. 4480 (2000). In other words, if the employee is able to demonstrate the employer is lying about the reason given for discharge, then this can go a long way in establishing a case, especially if there is other evidence there was an illegal reason.

Examples of causes of action for wrongful discharge that were created by our state or federal legislatures would be those prohibiting various forms of discrimination, i.e., religion, disability, nationality, age, race, or sex discrimination, and those prohibiting unlawful retaliation for engaging in certain types of protected conduct. For example, if a jury finds the Plaintiff’s membership in a protected class was a motivating factor in the Defendant’s adverse actions then the Plaintiff should win, even though other factors also motivated the employer’s actions. McDonnell Douglas Corp. v. Green, 411 US 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); and Brown v. East Mississippi Elec. Power Ass’n, 989 F.2d 858 (5^th Cir. 1993), see also, 42 U.S.C.§2000e-2(m). Also, it is unlawful for an employer to retaliate against an employee who has opposed an unlawful employment practice, such as discrimination (or sexual harassment), or who has testified, assisted or participated in any manner in an investigation, proceeding or hearing under Title VII. - - 42 U.S.C. § 2000e, et seq., 42 U.S.C. § 2000e-3(a); Curl v. Revis, 740 F.2d 1323 (4^th Cir. 1984). In other words, complaining in good-faith to your employer that you believe you have been sexually harassed or discriminated against could constitute protected activity, and it could be unlawful for the employer to terminate the employee as a result thereof. Requirements for a "prima facie" case of unlawful retaliation:

There are numerous other Federal and State statutes and regulations that make it unlawful to terminate an employee in retaliation for engaging in different types of "protected activity." For example, Tennessee has a statute (TCA § 50-1-304) that makes it illegal to discharge an employee in retaliation for refusing to participate in or refusing to remain silent about illegal activities. Tennessee Wrongful Discharge, T.C.A. § 50-1-304, provides, in part:

There are also common law causes of action for wrongful discharge where public policy is implicated. For example, it is illegal in Tennessee to fire an employee in retaliation for refusing to violate the law or in retaliation for filing a workers’ compensation claim. In a public policy retaliatory discharge case, the employee must prove these elements:

If the jury finds by a "preponderance of the evidence" that the employee has proven these essential claims, then it may return a verdict for the Plaintiff. Chism v. Mid-South Milling Co., 762 S.W.2d 552, 556 (Tenn. 1988); Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 899 (Tenn. 1992); Anderson v. Standard Register Co., 857 S.W.2d 555, 558 (Tenn. 1993).

The employee must prove these elements in a worker’s compensation retaliatory discharge case:

If the jury finds by a "preponderance of the evidence that employee has proven these essential elements, then it may return a verdict for the employee. Hodges v. S.C. Toof & Co., 833 S.W.2d 896 (Tenn. 1992); Anderson v. Standard Register Co., 857 S.W.2d 555, 588 (Tenn. 1993).

There are numerous other types of conduct, that by common law, could result in a public policy discharge case, for example, if an employee is fired because of their service in the national guard or due to their service on a jury.

If you believe you have been wrongfully fired (or are going to be fired), you should contact a competent lawyer as soon as possible (under ideal circumstances - before you are fired). You should be very careful about what you put in writing in any letter or memorandum or exit interview document to the employer. The best advice is don’t put anything in writing unless your attorney first approves it.

Important filing deadlines apply to employees who have been fired and a competent attorney should be consulted immediately. In Tennessee, for example, if you believe you have been discriminated against, and unless you had a governmental employer, a charge of discrimination should be filed with the Tennessee Human Rights Commission/EEOC within six (6) months (up to 300 days) from the date of the discriminatory conduct and/or from the date you discovered you were being terminated, a suit under state law for discrimination, and/or wrongful termination must be filed within one (1) year from the date of the discriminatory conduct and/or from the date you discovered you were being terminated. If you miss any of the above filing deadlines, then your right to sue could be forever lost. The phone number for the THRC is (865) 594-6500, and the phone number for EEOC is (615) 736-5820. A competent attorney should either prepare the charge or review the charge before you file it.

The damages available in wrongful discharge suits depend on the statute or cause of action relied upon. Generally, compensatory damages for back pay and emotional distress, are available, and either reinstatement or front pay. Punitive damages or liquidated damages may also be available depending on the cause of action. Also, attorneys fees and expenses may be assessed against the employer in most statutory based causes of action.

We typically take these types of cases on a contingency fee basis, but we examine the facts very carefully before we agree to accept a case. Situations vary, but factors we consider in deciding whether to accept a case usually include some combination of the following:

5. Other factors that can enter into our thought process include how long the employee worked at the company, the employee’s job performance, the employee’s disciplinary record (or lack thereof), evidence that the employer acted unfairly, vindictively or stupidly, and the amount of potential damages.