Friday, October 25, 2019

Suspicions and Irregular Practices Not Enough to Prove Political Firing

When leadership in the workplace changes, sometimes the culture of the workplace changes as well. When the leadership change includes leaders of a different political affiliation than the previous administration, some employees tend to attribute any negative action towards them as politically motivated. It would be na├»ve to express that politics never has a role in who is favored or disfavored in the workplace, but it takes more than suspicion or unsupported conclusions to convince a court that an employee’s rights were violated.

This week, the 7th Circuit again addressed the issue of what it takes to prove unlawful employment decisions based on political affiliation. In Daza v. Indiana, plaintiff Daza worked for the Indiana Department of Transportation (INDOT) for a number of years allegedly under management by Democratic affiliated administrators. Once a Republican director and department heads, were appointed, he believed that they picked on him, according to him, because of his affiliation to the Democratic party.

The problem for Daza was that the actions that he claimed were politically motivated were hard to link to his Democratic affiliation – although admittedly it is also difficult to conclude from the facts of the case that he deserved to be discharged. Daza claimed that over a period of four years he suffered political retaliation by virtue of three written reprimands for alleged unprofessional behavior, including insubordination for refusal to remain on call after hours and misconduct during a training. He apparently also was very vocal about his dissatisfaction with new managers and administrators who were above him in the organization. He was ultimately discharged.

To link his discharge to his political affiliation, Daza claimed that he had openly questioned the treatment of another employee who also was a Democrat; that his mother had written a letter to the editor critical of the Republican party, and that he had lodged several complaints about decisions by new leadership. He also claimed that he was discharged for the same type of offenses that others received lesser discipline and that he was never given an opportunity to respond to the allegations against him.

Admittedly, discharge for what appears to be relatively minor offenses looks bad, especially for an employee that received good evaluations and had worked for the agency for a long time. Not offering him a chance to respond to allegations doesn’t help the employer either.

The problem for Daza is that he offered no evidence that any of the adverse actions were politically motivated or linked to his political affiliation. Often employees who are discharged when a change in political leadership occurs point to the closeness in time between the events (new leadership “cleans house”). Such was not the case here as Daza pointed to events that happened over a four year time period. As the court noted, “[A]s the time separating the protected conduct and the adverse employment action grows, the causal inference weakens and eventually time becomes the plaintiff’s weakness.” Similarly, each disciplinary action was linked to some behavior by Daza that he apparently did not deny doing.

While the burden is always on the employee to show evidence of discriminatory behavior and the link between the adverse employment action and the protected right of the employee, employers can always help themselves out by having defensible policies and practices, ensuring that they document misconduct and disciplinary action and consider decisions made in previous similar situations.