Fitness-for-Duty Exam Dooms Deputy’s Retaliation Claim

August 22, 2018

Nearly all federal and state laws that impose obligations on employers to take, or not take, certain actions include antiretaliation provisions. If an employer takes an adverse employment action because an employee exercised rights under an employment law, such as raising concerns about workplace discrimination, the employee may have a separate claim for retaliation. It has become common for employees to add retaliation claims to underlying claims such as discrimination or harassment. In a recent case, the U.S. 7th Circuit Court of Appeals (which governs federal law in Wisconsin) upheld the dismissal of an employee’s retaliation claim, concluding that he couldn’t causally connect his protected conduct under the law with his termination. Significant to the court’s decision were the results of a fitness-for-duty examination, which provided an independent, nonretaliatory, and non-pretextual reason for the employee’s discharge.

Employer Retaliation

Employees are raising retaliation claims with increasing frequency. The Equal Employment Opportunity Commission (EEOC)—which enforces Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act (ADA), the Age Discrimination in Employment Act (ADEA), and the Genetic Information Nondiscrimination Act (GINA)—is the federal agency where employees, former employees, and job applicants can file discrimination and retaliation charges. Thirty years ago, in fiscal year (FY) 1988, 24 percent of charges filed with the EEOC included a retaliation claim. In FY 2017, that number had more than doubled to 48.8 percent of all charges including a retaliation claim. Courts generally have been receptive to retaliation claims, including, in many circumstances, broadening what actions may constitute an adverse employment action.

Retaliation claims generally involve three elements the employee must establish:

  • He engaged in protected conduct under the particular law;
  • He was subjected to an adverse employment action; and
  • The employer took the adverse action because the employee engaged in the protected conduct

Under many antidiscrimination laws, the protected conduct can take one of two general forms: opposition to conduct prohibited by the particular statute or participation in proceedings under the law.

Opposing conduct prohibited by statute. Opposition often involves an employee complaining to the employer about conduct he reasonably believes is in violation of the law. For example, complaints to the employer that a promotion decision was discriminatory based on gender or that an employee was subjected to a hostile work environment because of his religion can qualify as protected oppositional conduct.

Participating in legal proceedings. Participation, as protected conduct, normally takes one of two forms. First, if the employee files his own discrimination complaint with the appropriate governmental agency (e.g., the EEOC or the Wisconsin Equal Rights Division, or ERD), the employer cannot take an adverse action, such as terminating the employee. The second primary type of participation happens when the employee assists a coworker in his discrimination proceeding, for example, by testifying for the other party in an ERD proceeding.

While taking an adverse employment action against an employee for either oppositional or participatory protected conduct is never a good idea, certain laws cover only some, but not all, protected conduct (e.g., only participatory protected conduct). Additionally, some laws have specific complaint requirements such as requiring the complaint to be in writing or filed with a governmental agency. Your legal counsel can assist you with the details.

Assuming that the employee or job applicant can establish that he engaged in protected conduct, he must next show that he was subjected to an adverse employment action. What constitutes an adverse action differs depending on which law is involved. While not every move that makes an employee unhappy is an adverse employment action, the term is broader than the obvious employment actions such as terminations, demotions, or pay decreases. A number of courts have found, under various anti-discrimination laws, that any action that may dissuade an employee from raising concerns about violations of employment laws can constitute an adverse employment action.

The final requirement that an employee must show is that the employer took the adverse action because of the protected conduct. Timing is often a factor that courts look at in assessing causation. If the employee is discharged the day after she filed a harassment complaint, eyebrows will be raised. Negative comments by an employer about the employee’s complaint also can suggest a causal connection between the protected conduct and the adverse action.

Assuming an employee establishes the above three elements, the employer can show that what actually motivated the adverse decision was unrelated to the protected conduct. This is where the employer in the following 7th Circuit case ultimately succeeded in defending against the employee’s retaliation claim. If the employer successfully articulates a legitimate nonretaliatory reason for its employment action, the employee can still prevail on a retaliation claim by showing that the employer’s reason was actually a pretext, or smokescreen, for retaliation. While courts and agencies won’t second-guess an employer’s justification for an employment decision for which it had a good-faith basis, if the employee can show that the employer is being dishonest in its justification, he may be able to prevail on a retaliation claim.

Deputy Fired After Testifying Against Sheriff

Facts. Scott Milliman was employed as a deputy sheriff working at the McHenry County (Illinois) Sheriff’s Department. While attending a deposition as a witness for a case filed by another employee, Milliman accused the sheriff of engaging in corruption and bribery, securing fraudulent loans, trafficking illegal aliens, and soliciting the murder of two individuals.

Given the oddness of the allegations (even for our sister state of Illinois), the sheriff’s department referred Milliman to a psychologist for a fitness-for-duty evaluation. The psychologist conducting the exam concluded that the deputy suffered from cognitive and psychological problems from a previous brain tumor that rendered him unfit to perform his duties. Based on the results, the department concluded that Milliman wasn’t fit for duty as a deputy and terminated him.

Because Milliman was a public employee, he had additional protection against retaliation that isn’t available to private employees—the First Amendment to the U.S. Constitution. The First Amendment generally prohibits retaliation against a public employee who engages in speech on a matter of public concern. The retaliation analysis under the First Amendment is similar to the retaliation analysis discussed above.

Milliman filed a lawsuit claiming he was fired because he spoke out at the deposition on a matter of public concern. The trial court dismissed his lawsuit, concluding that the psychological exam provided an independent nonretaliatory reason for the termination and that the sheriff’s department had relied on the results in good faith.

7th Circuit’s decision. On appeal, the 7th Circuit agreed that Milliman’s retaliation claim was properly dismissed. There wasn’t much debate that his speech was protected by the First Amendment and his termination from employment was an adverse employment action. The court was willing to assume there was adequate evidence of the causal connection. That didn’t mean, however, that Milliman could prevail on his retaliation claim—only that there was enough evidence to permit the case to go to a jury for determination.

The 7th Circuit then examined the employer’s legitimate nonretaliatory reason for the discharge decision—the results of the fitness-for-duty exam. The psychologist had observed cognitive and psychological problems that seemed to interfere significantly with Milliman’s ability to work effectively as a deputy sheriff. The court found the results provided a sufficient legitimate nonretaliatory reason for the termination.

Finally, the court addressed Milliman’s argument that the sheriff’s department’s reason for firing him was false. The court observed that in evaluating an employee’s claim that the reason for his discharge was pretextual, it won’t second-guess an employer’s “facially legitimate business decision.” An employer’s reasons may be “foolish or trivial” but aren’t unlawful if they are honestly believed. The court found no basis to conclude that the sheriff’s department did not honestly believe the psychologist’s report that concluded Milliman wasn’t fit to serve as a deputy sheriff. Milliman v. County of McHenry, No. 17-2687 (7th Cir., June 19, 2018).

Bottom Line

There may be technical legal reasons why an employee’s conduct isn’t protected under a specific antiretaliation law, but this element is generally outside most employers’ control. Similarly, other than with fairly trivial changes to the conditions of employment, it may be difficult to win a retaliation case without a trial under many antidiscrimination laws, given the somewhat lenient standard the courts apply under many antiretaliation laws: Did the action dissuade a reasonable employee from exercising her rights under the law?

Where you, as the employer, enjoy the greatest control is having a justification supporting the employment decision that you honestly believed when the action was taken. One of the areas where skilled HR employees and managers can assist is with good documentation. If your legitimate nonretaliatory reason for termination is performance-based, make certain you have documentation supporting the decision. It isn’t unusual for an employee who is nearing the end of a performance improvement plan (PIP)—and not succeeding—to complain suddenly about workplace discrimination in an effort to save his job. If you documented a final date for the employee to succeed on the PIP as well as the individual’s failure to meet the requirements within that time period, you are well positioned to address any ensuing retaliation claim.

Follow your procedures when disciplining employees or taking a job action. That’s especially important when protected conduct has recently occurred. Be aware of the timing issues. If your documentation isn’t as strong as it could be, don’t take a job action, such as terminating the employee, on the heels of a complaint that would constitute protected conduct. Finally, always evaluate whether the action you’re contemplating is consistent with how you treated other employees who had not engaged in protected conduct under similar circumstances.

This article, slightly modified to note recent updates, was featured in the August 2018 issue of the Wisconsin Employment Law Letter, which is co-edited by Axley Brynelson Attorneys Saul Glazer and Michael Modl and published by BLR®—Business & Legal Resources. Reproduced here with the permission of BLR®—Business & Legal Resources.