"An Employer [May] Legitimately Fire an Employee if It Honestly Believes That the Employee Falsified [Sexual Harassment] Allegations"

"Groundless complaints defame innocent coworkers, undermine trust in the workplace, and waste resources."

|The Volokh Conspiracy |

From Carrethers v. McCarthy (nonprecedential), decided Thursday by the Sixth Circuit (Judges Griffin, Thapar, and Readler):

The Army fired Lorraine Carrethers (a civilian employee) after it concluded that her complaints about alleged workplace harassment were baseless. She then sued the Army for retaliation. The district court rejected her claim, reasoning that it's not illegal to fire an employee for abusive complaints. We affirm.

Carrethers used to work for the Army as an IT specialist. In the last year and a half of her employment, Carrethers repeatedly accused her supervisors and other coworkers of various sorts of harassment. Her allegations were never substantiated, prompting a warning and then a reprimand about these seemingly unfounded complaints.

Carrethers then filed yet another set of allegations against her immediate supervisor. This time, the Army appointed an officer to investigate. After interviewing Carrethers, this officer thought it "extremely clear" that she was "mak[ing] things up." But the officer didn't stop there. He also interviewed fourteen other employees who Carrethers said could verify her claims. As it turned out, they contradicted her claims. A few of them added that Carrethers's tendency to claim harassment had made them uncomfortable working with her.

Given this evidence, the investigating officer concluded that Carrethers was abusing the complaint system to distract from her poor work performance. His conclusions were reported up the chain of command, and the Adjutant General made the decision to fire Carrethers.

Carrethers then sued the Secretary of the Army under Title VII of the Civil Rights Act, alleging that her termination was illegal retaliation for her complaints. The district court granted summary judgment to the Secretary. This appeal followed.

As relevant here, Title VII forbids retaliation against an employee for "oppos[ing] any … unlawful employment practice." … To survive summary judgment, a [retaliation] plaintiff must at least establish a "prima facie case" by showing that: (1) she engaged in protected Title VII activity; (2) the defendant knew of this protected activity; (3) the defendant took adverse employment action against her; and (4) there was a causal connection between the protected activity and the adverse action. If the employer points to a "legitimate, non-retaliatory reason" for the adverse action, then the plaintiff must also provide evidence that (5) the proffered reason is a mere "pretext," not the real motive.

There's no real factual dispute in this case about motive: no one disputes that the Army fired Carrethers because it determined that her allegations were bogus. Instead, Carrethers argues that this reason does not qualify as legitimate and non-retaliatory as a matter of law.

This case, then, comes down to a straightforward question: may an employer legitimately fire an employee if it honestly believes that the employee falsified misconduct allegations? There's ample caselaw saying yes. [Citations omitted. -EV] And common sense tells us that must be the right answer. After all, groundless complaints defame innocent coworkers, undermine trust in the workplace, and waste resources. It only gets worse when (as here) the employee seems to have made a habit of making things up. So of course employers are allowed to fire such employees.

What does Carrethers have to say about this? Relying mainly on one out-of-circuit case, she argues that an employer's disbelief in a complaint is "not sufficiently independent" from protected activity to count as a legitimate, non-retaliatory reason. Gilooly v. Mo. Dep't of Health & Senior Servs. (8th Cir. 2005) (cleaned up). The argument goes like this: the Army fired Carrethers because of her complaints—that's undisputed. Carrethers's complaints were protected activity—at least, a jury could find as much if it believed Carrethers's testimony that she made her complaints in good faith. Thus, a jury could find that the Army fired Carrethers because of protected activity—which is retaliation, not a legitimate reason.

The problem with this argument? It entirely ignores the employer's perspective. And as a result, it elides the all-important question of motive. Even if Carrethers made her complaints in good faith, the Army fired her because it thought that they were not in good faith. That proffered reason is legitimate and non-retaliatory…. "If an employer … never realized that its employee engaged in protected conduct, it stands to reason that the employer did not act out of a desire to retaliate for [that] conduct[.]" … And since Carrethers does not argue pretext, there is nothing more to say.

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  1. Why nonprecedential?

    1. Because there was no trial?

  2. Filling false claims about coworkers

    Isn’t that creating a hostile work environment?

  3. No surprise. This has always been law. Making intentionally false allegations is a termination offense.

  4. Lorraine? Not Karen?

  5. Would it be simpler to say that filing false claims is not protected activity?

  6. This is a big surprise to me, and a welcome one. I know personally of multiple cases where the employer pretty much knew a complaint was phony but didn’t dare do anything to the complainer because of the dire federal penalties for retaliation. (And at least one where a male employee was able to put that advantage on his side by filing his own complaint against his accuser before she filed hers.)

    At my last company I was a management trainee, and the briefing they gave me on harassment law made clear you cannot do anything to complainers even if you think they are lying.

    Why is this case nonprecedential?

    1. You can fire a complainant for lying, but you can’t fire a complainant for being mistaken. That distinction may be hard to explain to a jury, so your employer doesn’t want you doing something that can create potential liability.

      Here she apparently did it so much that it was blatant.

      1. It may also be hard to prove.

        Most large companies have a number of employees everyone knows should be fired but aren’t because everyone is sure they will file a lawsuit of some from of discrimination.

  7. I’m not familiar with 6th Circuit practice, but in the circuits I know about the Court of Appeals issues two types of opinions, full-dress precedential opinions and summary orders. In theory, though not always in practice, the summary order is reserved for cases that don’t raise significant legal or factual issues and are disposed of in relatively short, unelaborated opinions. Precisely because the results are generally foregone conclusions and the legal issues uncontroversial, they are not, to be blunt about it, the judges’ best work, though usually adequate for the occasion. If the summary order really is a proper summary order, it doesn’t stand for any proposition (other than “X wins”) that can’t be found in a number of earlier, full-dress precedential decisions that you can cite. You shouldn’t need to cite a summary order as precedent for whatever legal proposition you’re arguing.
    In practice, that isn’t always true. In my own home circuit, a precedential opinion held that you can’t bring a Title VII claim against individuals. Given the reasoning in the decision, it was obvious that the same rule should hold in ADA and ADEA cases, and a uniform course of district court authority so held. More than once, district judges said that the Circuit hadn’t ruled on the question and it hadn’t — in a precedential opinion. But there was a summary order so holding. It was a perfectly fine summary order that could stand up in its detail and craftsmanship with the mine-run of full-dress precedential opinions, but for some reason it had been issued as a summary order so it could not be cited as authority for a proposition no one doubted.

    1. Yeah, something similar for me. My home circuit court had issued a non-precedential decision saying that a certain kind of damages were not available. District judges nevertheless relied on that in tossing out those damage claims; I encountered one attorney who tried to argue to the district judge that the decision was nonprecedential, and the judge essentially laughed and said, “Nice try.” (And then about two years later, the Circuit finally got around to issuing the precedential ruling that we all wanted, just to clarify the law.)

    2. CJ, do you mean it could not be cited as binding authority, or was the summary order issued before 2007 and yours is one of the circuits that wouldn’t allow it to be cited at all?

  8. I remember for awhile that there was some Title IX guidance floating around that you couldn’t discipline someone for filing a false sexual harassment allegation unless you specifically had it was a violation of policy to file false allegations.

  9. I would say that the employer’s belief that the employee is sincere can’t merely be subjectively sincere (an “honest belief”). It also needs to be objectively reasonable. Otherwise, the opposite problem applies to relying on the employee’s subjective sincerity. Employers would be incentivized not to check facts very carefully if they could simply get rid of complainants by firing them as long as they subjectively sincerely believed the complainants weren’t telling the truth.

    Moreover, in close cases, this would authorize employers to fire employees who make complaints that are colorable but ultimately not decided in the employee’s favor.

    Obviously employees should not have carte blanche to make complaints willy nilly. At the same time, the anti-retaliation provision would become a nullity whenever employees make a complaint and are not believed, they can be fired with impunity. We have to be reasonable. But each provision of a statute has to get a reasonable meaning.

  10. “And common sense tells us that must be the right answer.”

    OOOF!

    I wished they didn’t include that statement.

    Common sense simply cannot be a reason for or against applying the law.

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