Performance Issues Undercut Retaliation Claim

By Kenneth J. Diamond Apr 5, 2017
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An employee whose employment was terminated shortly after he engaged in a protected activity did not present a genuine question warranting a trial on his retaliation claim, the 8th U.S. Circuit Court of Appeals ruled.

In 2001, Philip Sieden began working at Chipotle Mexican Grill Inc. During his employment, he rose through the ranks and was eventually promoted to general manager of a newly built restaurant. In October 2010, he was promoted to "restaurateur," a title indicating that he was among Chipotle's best general managers and had achieved certain high standards at his restaurant. In March 2011, he was promoted to "restaurateur 2," meaning that in addition to managing his own store, he was responsible for mentoring the general manager at another store. In May 2011, he was promoted to "restaurateur 3" and became responsible for a third restaurant. Sieden reported to the area manager, Todd Patet, and Patet reported to the team director, Travis Moe.

In March 2012, Moe and Patet met with Sieden and removed one restaurant from his responsibilities due to performance issues. In April 2013, a team of Chipotle risk managers conducted an annual audit of one of Sieden's remaining restaurants. That same month, during a managers meeting, Moe allegedly told Sieden that he was hiring "too many Hmong people." After the meeting, Sieden complained about Moe's comment but did not file a formal complaint.

Later that month, Chipotle sent Sieden the results of its restaurant audit, noting that they revealed some "pretty shocking things." He acknowledged the problems and accepted responsibility for them. In May 2013, his duties were further limited to acting manager of one location. In June 2013, his employment was terminated.

[SHRM members-only toolkit: Involuntary Termination of Employment in the United States]

Sieden filed suit under the Minnesota Human Rights Act, claiming retaliation for opposing Moe's April 2013 comment as well as age and sexual orientation discrimination. The district court granted summary judgment on the retaliation and sexual orientation claims, and a jury found in Chipotle's favor on the age discrimination claim. Sieden's appeal addressed only the dismissal of his retaliation claim on summary judgment. The 8th Circuit affirmed dismissal of that claim.

In its decision, the 8th Circuit rejected Sieden's various arguments that the stated reason for his termination—performance deficiencies—was instead a pretext for retaliation based on his opposition to Moe's comment. In so holding, the 8th Circuit found that Chipotle expressed concerns about Sieden's performance both before and after the protected activity. Further, his history of positive performance reviews was irrelevant as Chipotle was entitled to rely on the most recent review, which occurred prior to the protected activity and reflected concerns with his performance. Likewise, Chipotle's stated reason for discharge was not "purely subjective." Regardless, the record showed that the performance concerns existed well before Sieden's protected activity, thus indicating that they were not fabricated to conceal retaliatory motive. In addition, his argument that Chipotle offered shifting explanations for his termination was rejected as Chipotle simply provided additional detail and not "completely different" reasons for the termination decision.

Sieden v. Chipotle Mexican Grill Inc., 8th Cir., No. 16-1065 (Jan. 26, 2017).

Professional Pointer: Even when an employee engages in protected activity shortly before being subjected to an adverse employment action such as termination, the timing alone is not pretext for retaliation. However, it is important for the employer to have strong contemporaneous documentation of performance issues both before and after the protected activity occurred in order to argue against this timing issue.

Kenneth J. Diamond is a shareholder with Winterbauer & Diamond PLLC, the Worklaw® Network member firm in Seattle.

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