In a recent 8th Circuit case published on March 1, 2017, LaKeysia Wilson v. Arkansas Dept. of Human Services (DHS), Wilson, an African American woman, sued DHS alleging disparate treatment on account of race as well as a retaliation claim.
Another DHS employee, an African American woman, Sharon Meeks was fired in 2013 and filed a discrimination charge with the EEOC. The State Appeal panel ordered her reinstated. Meeks’s supervisor led the investigation resulting in Meeks’s termination. The supervisor urged the plaintiff, Wilson, to apply for the same open program position for which Meeks had applied and told Wilson that she “was determined to thwart the efforts of Meeks.” Meeks and Wilson were the only ones who applied for the job. In March 2014, Wilson got the job, which was a promotion to program supervisor. DHS then re-hired Meeks in Wilson’s old position, and fired her three (3) months later.
Weeks after Meeks was fired, Wilson began to receive what she claimed to be unfair criticism from her supervisor and was stripped of her supervisor duties on July 2, 2014. She filed a charge of discrimination on September 8, 2014, alleging harassment based on race and disability. Three weeks later, she was put on a performance improvement plan, and the next week she received a written warning for work that a Caucasian employee did not accomplish. On October 22, 2014, six (6) weeks after filing the EEOC charge, Wilson was terminated.
The 8th Circuit affirmed the dismissal of the disparate treatment charge because Wilson did not state sufficient grounds to establish that she was treated differently than a Caucasian colleague. As to the retaliation claim, Wilson was required to show (1) she engaged in statutorily protected conduct; (2) she suffered an adverse employment action; and (3) a causal connection exists between the two. See Wells v. SCI Mgmt., L.P., 469 F.3d 697, 702 (8th Cir. 2006). The 8th Circuit found that Wilson sufficiently pled the first two elements, but the issue of the causal connection between the filing of the EEOC charge and the firing still existed. The Court found that the six-week period between the EEOC charge and the termination plausibly alleged a casual connection. The Court found that without a detailed explanation why DHS terminated Wilson, DHS’s alternative explanation for the firing was not “sufficiently convincing” finding that while the factual allegations may be consistent with termination due to poor performance, that was not an “obvious alternative explanation” rendering her claim implausible.
While DHS may ultimately be able to show that Wilson had performance issues sufficient to warrant her termination, the Employer takeaways from this case are clear: Employers must document performance issues. Employers must also take all complaints of discrimination seriously. Also, as harsh as it may sound – hire slow, but fire fast, preferably before the employee with performance issues complains about discrimination. Doing so will go a long way to avoid paying a lawyer to defend a retaliation claim.