Seyfarth Synopsis: When an employee violates company rules or policies, a company is within its rights to respond with appropriate corrective action. How to respond, however, can become complicated when an employee engages in legally protected activity at or around the same time as their misconduct.
On April 30, 2020, the 11th Circuit issued its opinion in Brad Knox v. Roper Pump Company, No. 18-11756, (11th Cir. 2020) reversing summary judgment on a former Roper Pump Company (Roper) employee’s race-based retaliation claim. The key takeaway from Roper is that an employer may not respond to a claim of discrimination by conditioning continued employment on a release of all claims and then firing the employee for refusing to sign the release. When stated in those terms, it is abundantly clear that such an action constitutes unlawful retaliation. When an employee violates workplace policies at or around the same time that the employee engages in protected activity, how to discipline the employee appropriately for breaking workplace rules and otherwise limiting liability for a legitimate workplace decision without being accused of retaliation for the complaint becomes much murkier. Below is a summary of the key facts and holding in Roper together with some tips to stay on the right side of the law in this context.
On September 28, 2015, Brad Knox (Knox), an African-American man and 15-year quality test technician at Roper Pump Company, got into a fight with his adult daughter Kayla Knox (Kayla) at their shared home. Knox admitted that he slapped Kayla across the face, but claimed that he did so only after she first became violent with him. Kayla worked in the same facility as Knox, but for one of Roper’s affiliated companies. Kayla went to work the next day and complained to Roper’s human resources department. Because violence against a coworker violated Roper’s workplace violence policy and subjected an employee exhibiting violent behavior to “corrective action up to and including, termination,” Roper suspended Knox after investigating the matter.
Shortly after being placed on suspension, Knox called Roper’s Ethics and Compliance Employee Hotline to complain that he believed he was being discriminated against on account of race. He claimed that white employees had violated the workplace violence policy and Roper allegedly allowed them to continue working. Roper’s Human Resources Director and President, who made applicable employment decisions related to Knox, were aware of Knox’s complaint.
Post-complaint, Roper presented Knox with three choices: (1) accept termination for violating the Company’s workplace violence policy; (2) resign and sign a release in order to receive a severance package; or (3) complete an anger management course while on unpaid leave and keep his job. Knox chose the last option. Roper informed Knox that he could return to work after he received a certificate of completion of the course. Roper then sent Knox a written Last Chance Agreement (LCA), memorializing the terms of his continued employment. The LCA also included a release of all claims against Roper — including, expressly, any Title VII claims, which encompassed his race-discrimination complaint. The release included a standard and legally required carve-out permitting him to file a charge of discrimination or participate in an investigation conducted by any federal, state or local agency, but precluded any individual relief arising out of such a claim. Knox objected to the release and asserted that he believed the release was in retaliation for him having made a hotline complaint of racial discrimination.
Roper refused to remove the release. Roper further noted that the employees Knox compared himself to were inappropriate comparators because they, unlike Knox, were immediately terminated for violent behavior and terminated by different managers. Knox ultimately offered, in writing, to sign the LCA, if the Company removed his Title VII claim from the LCA, which Roper declined to do.
Knox subsequently sued Roper for race discrimination and retaliation. The district court granted summary judgment to Roper on both claims. On appeal, the 11th Circuit affirmed dismissal of Knox’s race discrimination claim, but reversed the district court’s decision on Knox’s retaliation claim. The 11th Circuit reasoned that a jury could reasonably conclude that Roper added the release because Knox complained of discrimination, that Knox would not have been fired had he signed the release, and that the Company’s proffered reason for the firing (violating the workplace violence policy) was a pretext for unlawful retaliation. In short, although Roper offered non-retaliatory reasons for his firing, the 11th Circuit held that a jury could reasonably find that Roper fired Knox in retaliation for filing a workplace complaint and then refusing to withdraw his claim. Whether a jury will ultimately decide the case in Knox’s favor remains to be seen, but Roper did not attain its goal of having the case dismissed by the judge as a matter of law before it ever reached a jury.
Roper reminds us that every employment decision must be analyzed on its own facts.
- Roper does not stand for the idea that all releases contained in an last chance agreement for continued employment constitute retaliation. Roper’s proposed release likely would have been analyzed very differently by the 11th Circuit if Knox hadn’t complained of race discrimination at all. Likewise, the result likely would have been very different if applicable Company personnel asked for a release of all claims before Knox complained of race discrimination or when they had no knowledge of Knox’s complaint. Such releases are thus not automatically
- The 11th Circuit may have also reached a different decision if Roper produced comparator evidence on summary judgment demonstrating that the Company has required such a release every time it offered an employee an LCA. Instead, Roper’s representative testified that it made Knox a “special offer.” The Company would have fared far better if it could have demonstrated that the release was standard protocol — and not specific to Knox.
- Roper could have also reconsidered its decision and eliminated Knox’s retaliation claim by simply accepting Knox’s counter-offer to sign the Company’s release with an appropriate carve out for his Title VII race discrimination complaint. In that scenario, if Knox still declined to sign the LCA after Roper removed the waiver of his race discrimination claim from the LCA and Roper discharged him in response, Knox would have a much harder time demonstrating issues of fact concerning whether Roper’s explanation for discharging Knox had anything to do with his race discrimination complaint. On those facts, it is less likely that the 11th Circuit would have found that there were issues of fact concerning whether Knox’s complaint was the “but for” cause of his subsequent termination.
In conclusion, when employee misconduct becomes entangled in a workplace complaint based on protected activity or a protected characteristic — which quite frequently occurs — employers must tread carefully to ensure that their response to the misconduct does not suggest that the complaint was a factor in the Company’s disciplinary decision. Ultimately, the evidence must show that the Company would have made the same disciplinary decision regardless of whether the employee engaged in protected activity.