Retaliation claim may succeed despite employee’s falsified letters of reference

Answer: Sorry, but there is a risk! Termination at this point definitely puts the company at risk for a retaliation claim and the employee could get a verdict in his favor, even if the company can prove that the reference letters were fake and the termination wasn’t discriminatory. That doesn’t mean the employee is “fire-proof” because he filed a discrimination complaint, but the company will fight an uphill battle when the termination follows closely on the heels of an employee complaint. It’s important to carefully weigh the risks with your Vigilant employment attorney in such situations, as there may be legal risks regardless of whether you decide to terminate.

An employer in Salt Lake City recently lost a retaliation case after a similar scenario. The critical mistake that employer made was the timing of the termination. Not only was the employee fired within a month of filing a race discrimination complaint, but the fake reference letters he was fired over had been submitted months earlier without any review or action. The employer only reviewed the reference letters and investigated their authenticity after the employee filed his complaint. The jury found in favor of the employer on the underlying discrimination claim, but the employee was ultimately awarded more than $65,000 in damages and $93,000 in attorneys’ fees for his retaliation claim. The short time between the discrimination complaint and the termination was a key factor in the retaliation finding. Also, the fact that the employer quickly shifted its discrimination investigation into an investigation of the employee’s reference letters was considered evidence of the employer’s retaliatory motive (Zisumbo v. Ogden Regional Medical Center, 10th Cir, Sept 2015).

Employers are drawing a very fine line when explaining that the employee’s complaint wasn’t the reason for the termination even though the termination ultimately resulted from the complaint having been made. After all, if the employee hadn’t filed the complaint, there would have been no investigation and the misconduct leading to the termination would not have been discovered. Lawyers call this an “intervening cause”: the employee would not have been fired but for his complaint, but only because something significant happened between the complaint and the firing, such as when the employer discovers during its investigation that the complaining employee violated a company policy. While the intervening cause is a legitimate, non-discriminatory reason for the termination under the law, it can be a difficult distinction for juries to grasp and therefore a difficult and risky argument for employers to make. It’s important to work closely with employment counsel in these situations.