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Is it retaliatory to fire an employee who acts out in mediation?

August 12th, 2013  |  Joy Waltemath

Because retaliation charges were the number one charge received by the EEOC in fiscal 2012 — 38 percent of all charges filed — they are worrisome for employers, notwithstanding this summer’s Supreme Court Nassar decision tightening the proof requirement to but-for causation. Against this backdrop, the Seventh Circuit recently decided a retaliation case that is raising eyebrows.

“Take this job and shove it.” In Benes v AB Data, Ltd, an employee who had worked for only four months filed an EEOC charge of gender discrimination. During EEOC-arranged mediation, the parties went to separate rooms; as is typical, the mediator would shuttle back and forth to relay offers and counter-offers. The employee became so upset with a proposal that, against protocol, he stormed into the room occupied by the employer’s representatives and loudly said: “You can take your proposal and shove it up your ass and fire me and I’ll see you in court.” Having said his piece, the employee stalked out, leaving the room’s occupants shaken. Within an hour, the employer accepted his counterproposal — it fired him.

Firing as sanction for mediation misconduct. In the employee’s subsequent Title VII retaliation suit (he abandoned his sex discrimination claim – surprise), the Seventh Circuit concluded that the employee was fired for misconduct during the mediation, not for making a charge of discrimination. If misconduct during litigation can form the basis for sanctions, why should misconduct during mediation be consequence-free? After all, Title VII only forbids employer actions that would dissuade a reasonable worker from making a charge or participating in an investigation of discrimination. Being fired for an egregious violation of mediation protocols wouldn’t discourage a reasonable worker from making or supporting a charge of discrimination any more than sanctions for misconduct in court discourage the filing of lawsuits, reasoned the court. What those sanctions discourage is the misconduct.

Employees aren’t insulated from their conduct that takes place within an investigation of discrimination if that would warrant termination outside an investigation, it said. Think about it: If the employer would have fired an employee who barged into his supervisor’s office, in the presence of others, and said what the employee said, then the employer was entitled to fire him for doing the same thing in mediation. Title VII “does not create a privilege to misbehave in mediation,” the court concluded.

Who imposes the sanctions? Nor did the Seventh Circuit make much distinction between court- or mediator-imposed sanctions for mediation misconduct, and employer sanctions — one party to the mediation unilaterally imposing its own “self-help” remedy.

And what was the misconduct? The court’s opinion was fuzzy about how it defined the parameters of the misconduct here. On the one hand, it seems like the court found the actual breach of mediation protocol (ignoring of the shuttle-diplomacy approach and barging into the employer’s representatives’ room) was the actual misconduct. Characterizing the employee’s conduct as sabotaging the mediation session, the court said: “Put to one side what he said there.”

However, the court said that if an employer could fire an employee “who barged into his superior’s office in violation of instructions, and said what Benes did, then it was entitled to fire someone who did the same thing during a mediation” (emphasis added). Given the Seventh Circuit’s reliance on its earlier opinion in Hatmaker v. Memorial Medical Center, in which it held that participation in an employer’s purely internal investigation doesn’t insulate an employee from being fired for “making comments” that “demonstrated bad judgment,” including “making frivolous accusations,” it appears that the court was extending its holding. Was it just the breach of mediation protocol? Or was it the words spoken?

But this was mediation. Wait. This didn’t happen in the supervisor’s office, actually. Nor did it occur in the context of an employer’s internal investigation. This took place in mediation; EEOC-arranged voluntary mediation, which, as Francine D. Schlaks, Ph.D., J.D., a federal mediator with significant agency experience, pointed out, “is strictly voluntary. As such, there should be no sanctions at all for misconduct that sabotaged the mediation session. The entire idea of mediation is for people to be able to talk, discuss and negotiate in complete confidentiality, using their own negotiation techniques,” she said.

Sanctions for mediation misconduct. David Wachtel, of Bernabei & Wachtel, a Washington D.C., law firm representing employees, suggested that mediator sanctions in a voluntary mediation could themselves be troubling; mediation should be “a uniquely safe environment.” Both Wachtel and Schlaks agreed that they would draw a line by only imposing sanctions for misconduct during a mediation that involved “violence, realistic threatened violence, and breach of confidentiality.” Additionally, in court-ordered mediation, Schlaks would add to that, “not showing up to a mandatory mediation and, possibly, failure to bring a person with authority to the mediation.”

Should mediators impose sanctions? Wachtel pointed out that in “a voluntary process, the biggest threat to parties is that if the mediation fails, they will both spend money and time in litigation. It shouldn’t take more than that to get cooperation.” Schlaks concurred. “In a voluntary mediation, there should be no sanctions,” she said. “In a court-ordered mediation, perhaps they should be responsible for the mediator’s fees and any court costs.”

Wachtel found the result troubling, given that either “barging in” or “heated language” during a voluntary mediation are part of protected activity. That’s not to say that anyone is suggesting the employee’s behavior in mediation was appropriate.  “If Benes had barged into his supervisor’s office, rather than a mediation room, and said, ‘take this job and shove it,’ I would have ruled the same way the Seventh Circuit did,” Wachtel said. “If he disrupted a meeting and ranted for 20 minutes, at anything but a mediation,” he stressed, “I would also have ruled for the defense.”

Stressing the mediation context, Schlaks offered this example: “What about the 23-year-old female who gets overwrought in a joint session and refers to the boss who groped her as ‘that bastard?’” she asked “After this case, is there no longer a clear line saying she can’t be fired for referring to her boss with disrespect?”

What’s good for the goose is good for the gander. What can employers learn from this case?

  1. Your conduct in mediation could be subject to sanctions as well. Make sure that employer representatives in mediation have familiarity with the facts and settlement authority. Remember that employer actions, including making unrealistically low offers or frivolous accusations, could also be seen as “sabotaging the mediation” under the Seventh Circuit’s approach.
  2. Fire in haste, repent in leisure. Notably, the employer here took just one hour after the employee’s outburst to fire him. That earned it a trip not only to district court but also to the Seventh Circuit, with the attendant time, expense, and distraction that litigation (and an appeal) entails.
  3. Resist the temptation to resort to self-help. What might have happened if the employer had allowed the mediator to handle the employee’s misbehavior: to institute a cooling-off period or reschedule the mediation? It’s impossible to know. However, not all courts might be as willing to find that what an employee did during voluntary EEOC mediation of a Title VII charge was not protected activity.