The short answer is “no,” because the employee’s prima facie case of retaliation can be rebutted by showing a legitimate, non-retaliatory reason for the termination.  



As our readers are well aware, retaliation is far easier to prove than any underlying discrimination and that even if the underlying claim of discrimination has no merit, retaliation can still be proved. All that must be shown to make out a claim for retaliation is (1) the employee’s filing of a claim or complaint of discrimination, (2) an “adverse employment action” by the employer, and (3) some causal link between the two.  



A decision coming from a federal court in North Carolina illustrates nicely that in spite of a prima facie showing, an employer can still show that the termination was based upon legitimate, non-retaliatory reasons.  In that case, an African American county transportation planner filed a charge of race discrimination with the EEOC in 2010. He also sent an 81-page letter to the County Manager in which he made comments which caused alarm that he could become violent.  For example, in the letter he said that “The tidal wave is impending … I shall deal with this matter.



Plaintiff was placed on administrative leave and directed to undergo a fitness for duty evaluation, but was ultimately fired when he cancelled the appointment, did not reschedule it, failed to respond to the County’s attempts to contact him by telephone, failed attend a scheduled evaluation and failed to maintain his availability during administrative leave. 



The County did not dispute that plaintiff established a prima facie case of retaliation since he made a complaint about discrimination in his letter and EEOC charge, his firing was an adverse action, and it took place in close temporal proximity to the letter and EEOC charge. However, the County contended that he was fired for legitimate, non-retaliatory reasons – i.e.,  because he cancelled his fitness for duty evaluation, did not reschedule it, and did not remain available as instructed while on administrative leave.



The Court agreed that plaintiff indeed made out a prima facie case of retaliation, and that under the McDonnell Douglas test, the burden then shifted to the County to articulate a legitimate, non-retaliatory reason for the firing, which the Court held that the County did.  Under McDonnell Douglas, plaintiff then was required to show that the County’s articulated reason was a pretext, which plaintiff failed to do.   




Notwithstanding the availability of defenses to a retaliation charge, we still strongly advise an employer to take a “business as usual” approach to a charging or complaining employee, to treat that employee like any other employee, to engage in open, non-intimidating communication with the employee to find common ground while the investigation or litigation is pending, and, of course, to document all decisions and pre and post-complaint performance issues that might result in discipline.