An employee of a zoo brought claims of discrimination and retaliation against his employer when he was terminated for poor performance in 2019.  A U.S. District Court recently granted  summary judgement in favor of the employer for the claims of race and disability discrimination but refused to throw out claims of retaliation. The employee’s retaliation claims arose from his reports of discrimination and from his use of medical and workers’ compensation leave.

The employee, an African-American man, was hired as a Director of Facilities at the zoo in 2017.  In 2018, the employee was attacked by a subordinate after terminating the subordinate’s employment.  The employee suffered serious trauma to his eye, face, and shoulder, and was left with post-traumatic stress disorder (PTSD).  He went on a workers’ compensation leave that was also covered by the Family and Medical Leave Act (FMLA).

When the 12-week FMLA leave expired, the employer granted him an additional seven weeks of leave as an accommodation under the Americans With Disabilities Act (ADA).

Upon the employee’s return to work in October 2018, he learned that he had been moved from an individual office to a shared space.  During the month of November 2018, the employee was reprimanded for several performance issues.  In May of 2019, a coworker approached the employee in an aggressive manner, slamming his fists on a table.  The incident triggered another bout of PTSD.  When the plaintiff reported it to a manager, no action was taken to discipline the other employee, and the manager made disparaging comments about the employee’s PTSD.

From January through October of 2019, the plaintiff was involved in discussions to repair or replace aging boilers at the facility but alleged that his request to replace them was rejected by management. In August of 2019 the employee suffered an on-the-job injury to his foot and ankle and again applied for workers’ compensation.  The following month he was issued a “second step” warning for the improper handling of a termination by his subordinate, which occurred in August.  This prompted the plaintiff to complain to several managers that he was receiving harsher treatment due to his workers’ compensation claims, and due to his race.

After the plaintiff’s manager received a report from the State Fire Marshall Inspector indicating that the boilers presented a safety hazard, the manager terminated the plaintiff’s employment.  The stated reason was a “pattern of work performance failures.”  The plaintiff filed charges with the Massachusetts Commission Against Discrimination (MCAD), and later withdrew the claims and filed in the federal court. The MCAD regulations allow claimants to request a “right to sue” letter after 90 days to allow them to proceed in court rather than at the MCAD.

The federal court complaint included eleven claims: a claim of race discrimination under state law, two federal claims of discrimination for race under different statutes, two claims for disability discrimination and failure to accommodate (one each under state law and the ADA), and six claims of retaliation under federal and state discrimination laws and the FMLA and the Massachusetts Workers’ Compensation Act.

The court granted summary judgment (i.e., dismissed the claims) to the employer on the discrimination claims, finding that there was no evidence that the employer’s stated reason for the termination was a pretext for race or disability discrimination.   But of the six claims stemming from retaliation, only one, the claim under the Workers’ Compensation Act, was decided in the employer’s favor.

Under the various statutes, a retaliation claim will stand if the plaintiff can show that he engaged in legally protected conduct, suffered an adverse employment action, and the two events are causally connected.  The court placed great emphasis on the timing of events, as retaliation can be proven by “temporal proximity.”  The employee lost his private office space upon return from FMLA leave, and he began receiving “counseling” for performance shortly thereafter.  He had never been disciplined prior to taking the leave of absence. His termination closely followed his complaints of disparate treatment due to his leave and his race.

Retaliation claims are always near the top of the list of categories of complaints received by the MCAD, as they are often added to discrimination claims.  This case shows that even when the underlying claim of discrimination fails, a retaliation charge may go forward.  It also demonstrates the strength of retaliation protection under the FMLA. More information on retaliation claims under the FMLA is available by reading fact sheet 77B available here.

AIM members with questions about performance management may call the AIM Employer Hotline at 1-800-470-6277.