Employer Investigation of Complaining Employee Bolsters Retaliation Claim

​The 3rd U.S. Circuit Court of Appeals reinstated the retaliation claims of an employee who was fired after he sued his employer, even though the employer discovered misconduct in the worker's text messages.

The plaintiff, a Black man, worked for Samuel Grossi and Sons Inc., a steel producer, for 10 years. He had serious back problems. He claimed that throughout his tenure Grossi management prevented him from accessing forms pertaining to the Family and Medical Leave Act (FMLA) and harassed him when he tried to use FMLA leave for his back problems.

The plaintiff obtained FMLA forms on his own and notified Grossi management that he was claiming FMLA leave. Grossi's director of human resources testified that she never approved FMLA leave for the plaintiff, but that he took FMLA anyway and that she let him take FMLA leave and did not assess any attendance points against him for doing so.

Occasionally, when demand for Grossi's products was low, Grossi laid off employees. A collective bargaining agreement between Grossi and a labor union dictated that layoffs occur in order of seniority. On one occasion, the plaintiff was laid off, but only for a day.

In March 2019, the same month as the plaintiff's one-day layoff, the plaintiff filed a charge of discrimination and retaliation with the Equal Employment Opportunity Commission. He then filed a federal lawsuit alleging race discrimination, retaliation and a hostile work environment under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 1981 and the Americans with Disabilities Act, and retaliation and unlawful interference under the FMLA.

In June 2019, after the plaintiff filed his lawsuit, one of the company's owners approached him. The owner threatened that, if the plaintiff did not drop the lawsuit, the owner would have other Black employees contradict what he was saying.

In July 2019, the plaintiff was on vacation and Grossi needed to move employees' lockers on the shop floor because they were blocking a surveillance camera. Grossi intended to use a forklift to move the lockers, but claimed that it had to empty them before it could do so.

Because the plaintiff was on vacation, Grossi decided to cut the padlock in order to empty his locker. After it did so, the HR director found a Samsung cellphone in the locker. She claimed that she thought the company might own the phone. She guessed the password on her first try and searched its contents to determine if it belonged to the company.

In reviewing the phone's text messages, the HR director found old messages in which it appeared that the plaintiff was soliciting sex from prostitutes. The HR director and a company owner compared the times and dates of the text messages to work hours. They determined that the plaintiff was soliciting prostitutes while at work and clocked in. As a result, Grossi terminated his employment. The plaintiff claimed that he was not soliciting prostitutes, had never met any of the women he texted and that the texting was only for entertainment.

Grossi moved for summary judgment on the plaintiff's claims, which the district court granted based on the plaintiff's misconduct.

On appeal, the 3rd Circuit considered the plaintiff's argument that Grossi's reasons for his termination were a pretext for unlawful retaliation. The court reasoned that, even though Grossi discovered misconduct by the plaintiff that justified discharge, its motivation for investigating him could show retaliation.

Among other things, the plaintiff presented evidence that the company owner was upset with his lawsuit, that the company did not need to empty his locker to move it with a forklift and that the company could have checked its records to see if it owned the phone.

The 3rd Circuit found that the plaintiff had presented genuine issues of fact to be decided by a jury at trial and reversed the district court's grant of summary judgment.

Canada v. Samuel Grossi & Sons Inc., 3rd Cir., No. 20-2747 (Sept. 15, 2022).

Jeffrey Rhodes is an attorney with McInroy, Rigby & Rhodes LLP in Arlington, Va.