Wednesday, July 20, 2016

As Usual, Timing Is Everything

Rarely do discharged employees believe that the reasons given for their termination are genuine. Maybe naturally so, they are angry and hurt and generally feel that their discharge was unfair. This sometimes leads to the discharged employee thinking that not only is their termination unfair, but probably unlawful as well, and they start connecting events or circumstances which may not be connected at all. 

Such was the case in the City of Quincy in 2013 when the City was faced with a large budget deficit. Like many employers, it looked at a number of ways to both increase revenues and reduce costs. Being a municipality, it looked at increasing efficiencies in City services, including privatizing garbage and recycling pick up, along with continuing to consolidate jobs and reduce its workforce. In the summer of 2013, the idea of privatizing refuse removal was discussed by the City Council, although it did not vote to seek proposals for that function.  Plaintiff’s department head was also told to consider consolidating three administrative positions, one of which was held by Plaintiff.

Plaintiff, a long time employee with the City, was unhappy with the proposed budget cuts, including privatizing garbage and recycling collection. She prepared a petition for members of the community to sign in opposition to this idea and presented it to the Council. When it was discovered that she had used a City computer to prepare the petition, she was advised about that inappropriate activity and asked to hold off on further pursuit of community awareness and support until the Council decided whether it was going to go ahead with this idea (it ended up rejecting the privatization plan). Shortly thereafter, at an employee luncheon with the Mayor, she again voiced her opposition to the idea.

Six months later, the City moved forward with  job cuts, and sure enough, Plaintiff’s job was one of them. Naturally, she immediately linked her petition activities with her layoff and believed that to be the real reason for her discharge, and filed suit for retaliation for exercising her right to free speech in violation of the First Amendment.  

To maintain a cause of action for retaliation against protected speech, a plaintiff must produce evidence that her speech was at least a motivating factor of the employer’s decision to take retaliatory action against her. This can be accomplished with either direct or circumstantial evidence. Circumstantial evidence may include suspicious timing, ambiguous oral or written statements, or behavior towards or comments directed at an employee. 

In this case, the Plaintiff argued that the timing of her discharge from when the City learned of her community activism was suspiciously close so as to create a question of whether the two circumstances were linked. The court disagreed and granted summary judgment in favor of the defendants.  The court said, in part, in order for a suspicious timing  argument to give rise to an inference of causation, the plaintiff must demonstrate that an adverse employment action  follows closely on the heels of protected expression, meaning generally within a few days, and that the person who decided to impose the adverse action knew of the protected conduct.         
While the City here successfully defeated the Plaintiff’s argument that timing was proof of retaliation against her, a number of other facts also weighed in the employer’s favor. For instance, the City ended up not privatizing the services against which Plaintiff protested. It also was able to show an extensive plan of job eliminations, both by attrition and layoff. While this undoubtedly helped the City prevail in this case, it is always important to remember that timing of actions can carry great weight.

Ancel Glink’s litigation Partner Ellen Emery, in conjunction with local counsel Jim Palmer of the Quincy law firm of Scholz, Loos, Palmer, Siebers & Duesterhaus LLP, got summary judgment in this case of Smith v. City of Quincy, et al, 14 CV 3341, dated June20, 2016 in federal court in the Central District of Illinois.