Bad Timing, but No Punitives

By Andy Volin

Firing someone right after they complain of discrimination can result in a retaliation claim, even if the employer thinks it has a good reason unrelated to the complaint. The Tenth Circuit just upheld a jury verdict in this situation, despite the employer’s assertion that it discharged the plaintiff for submitting fake letters from prior employers. Zisumbo v. Ogden Regional Medical Center (10th Cir. Sept. 4, 2015). The problem with the employer’s case was that it had the fake letters for months and only investigated after the employee complained of discrimination.

The outcome could have been worse for the employer, however, because the court refused to instruct the jury on punitive damages. The Tenth Circuit agreed that the employer had provided evidence of its “good faith efforts” to comply with the law, such as having appropriate policies, training, and enforcement of anti-discrimination policies. This was sufficient under previous Supreme Court cases. See Kolstad v. American Dental Assn., 527 U.S. 526 (1999). The fact that both management and the HR dept. apparently engaged in retaliatory conduct was not enough to defeat this defense.