Off-the-Cuff Remarks May Create Questions of Fact in Discrimination Cases
In Thompson v. ABVI Goodwill Services, 2013 U.S. App. LEXIS 18680 (2nd Cir., Sept. 9, 2013, unpublished decision), the Second Circuit upheld the District Court’s dismissal of an age discrimination case. The court held that the plaintiff’s supervisor’s comments indicating the plaintiff should “retire” were insufficient to raise an inference of discrimination as it was but one comment, and separated by 20 months from the plaintiff’s termination. Likewise, comments as to where the plaintiff “should work” were ignored by the court, as they contained no age related reference.
Just days after Thompson, however, the Eastern District of New York found that a comment to an employee that dropping an administrative discrimination complaint (eventually found to be without merit) would be in his best interest was sufficient to raise a question of fact as to whether the claimant’s demotion was retaliatory. Leacock v. Nassau Health Care Corporation, 2013 U.S. Dist. LEXIS 129736 (E.D.N.Y. Sept. 11, 2013).
Clearly, when a discrimination or retaliation complaint is filed by an employee, the best course of action is to avoid informal discussions with the claimant regarding the claimant’s complaints, and to remember the age-old adage “loose lips sink ships.” In both Thompson and Leacock, the burden of defending a legitimate non-discriminatory termination was needlessly increased by seemingly harmless comments of supervisory personnel.
In situations where the employer-employee relationship continues after an administrative discrimination complaint is filed, the employer would be wise to have a policy in place to instruct immediate supervisors to refrain from making any comment to the employee regarding the employee’s complaint. The ramifications and potential difficulties which may follow are too great, as the cited cases show. Such discussions of the employee’s complaint should ideally take place under the supervision of the administrative agency involved, absent reasonable and compelling circumstances which have been carefully considered by company management.
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