OUT OF THE WOODWORK AND INTO COURT: EVEN APPLICANTS CAN SUE FOR RETALIATION

Employers often are leery of retaliation claims, and rightfullly so, since they are among the most dangerous to defend in court.  Typically, however, employers confront allegations of retaliation only from current or just-made-former employees.  Now, in a recent decision issued by the Fourth Circuit, even applicants can go the retaliation route in the right circumstances. ImageLink_NewApplicants

The plaintiff in Templeton v. First Tennessee Bank, N.A., was a former loan officer for a bank in Tennessee.  Templeton worked at the bank from 1986 until she resigned in 2006.  During the course of her employment with the bank, Templeton lodged an internal complaint with the bank’s president that her supervisor sexually harassed her by forcibly kissing her when they shared a cab ride to their respective homes after a cocktail party at work.  After Templeton complained, her supervisor began a campaign of retaliation against her by refusing to speak to her, declining to invite her to work-related functions, unplugging her phone and computer, and pouring liquid on her office chair.  Ultimately, Templeton resigned in June of 2006 due the issues with her supervisor.  She didn’t sue, however.

Instead, in July 2008, just over two years from her resignation, Templeton was contacted by the bank’s area manager and asked to return to the bank in a managerial position.  Templeton expressed interest in the position because her former supervisor – the alleged harasser – was no longer employed by the bank.  Shortly after expressing interest, however, Templeton learned that the bank president – who was the same president in place when she previously worked for the bank and complained of sexual harassment – accused her of having “issues with management” and stopped the rehiring process.  Considering that to be the final straw, Templeton then decided to pursue legal action, filing suit for retaliation under Title VII and alleging that the bank’s refusal to rehire her in 2008 was due to her prior protected activity of lodging the sexual harassment complaint in 2006.

The lower court initially dismissed her claim, finding that the two year gap between her complaint and the decision not to re-hire her was too extended to establish the causal connection that is required of plaintiffs who allege retaliation.  However, when Templeton pressed the issue up the legal chain, the Fourth Circuit Court of Appeals reversed the lower court, finding that it erred when it determined that too much time had elapsed between Templeton’s harassment complaint that the bank’s refusal to rehire her.  Importantly, the Fourth Circuit concluded that because Templeton was retaliated against – if at all – upon the bank’s first opportunity to do so following her resignation, the two-year delay was not an impediment to finding a causal relation between the decision not to hire her in 2008 and her prior complaint in 2006.

In deciding that an ex-employee may have a viable retaliation claim against a former employer based on activity which occurred while working during a prior stint with the employer several years back, the Fourth Circuit broke some new ground in the retaliation arena.  Nevertheless, the important takeaway here is that employers should proceed with caution when making hiring decisions on former employees who wish to be considered for re-employment. Not only should employers engage in the usual consideration of their qualifications and suitability – much of which may probably be judged by their prior tenure – employers also should examine whether or not the employee has previously engaged in any form protected activity during their prior time with the employer.  In the end, if you do reject their application, it is even more important than usual that there is a legitimate, non-retaliatory reason behind the decision, and that you have acted consistently when compared to other hiring decisions made for the same or similar positions in the past.  If you do not, you’re making it very easy for the former employee to make a lawsuit very miserable for you.

 

Julie Moore is a Member in the firm’s Morgantown office. Julie focuses her practice primarily in labor and employment law. She regularly advises and counsels employers – both private and public – on various aspects of employment law, ranging from wage and hour compliance, to employee discipline and termination issues, to disability accommodation requests.
 
» See more articles by Julie A. Moore
» Read the full biography of Julie A. Moore at Steptoe & Johnson