"Smoking Gun" Not Needed to Prove Retaliation 08-09-2006
- By Rita Risser, attorney at law

A recent case from the influential 7th Circuit Court of Appeals affirms that employees can prove retaliation through circumstantial evidence. In other words, they don't need a "smoking gun."

In this case, Ms. Sylvester and three co-workers sent a letter to the Board of the non-profit agency where they worked, accusing the CEO and other staff members of calling them "bitches," commenting on the sexuality of other women staff, and of responding to harassment of another staff member by saying, "I knew there would be problems with hiring a cute, young blond. She should toughen up."

About 10 days later, Ms. Sylvester and two of the other women who signed the letter were fired. The Court said,

"There was the following circumstantial evidence. First, the prompt firing of two of the four signatories; it is undisputed that they were poor performers, but, if so, why were they not fired until shortly after they signed the letter accusing West of sexual harassment...? Second, as there were no current performance issues with Sylvester, why was her performance brought up...? And third, why was [Ms. Sylvester fired] not for performing her job badly but for reacting adversely to news of the firing of two of the cosignatories of the letter? A reasonable jury might conclude that she was being set up-that the defendant's officers ... knew she was sure to be upset by the firings,...

"Putting together these items of circumstantial evidence, a reasonable jury could conclude that the accusations of sexual harassment in the letter signed by Sylvester were a cause of her being fired. No more is necessary to show that she established a prima facie case ..."

Sylvester v. SOS Children (7th Cir 07/12/2006)

What You Should Do: In this case, like many others, the employer had "good reasons" for firing the employees. But because those good reasons came after the employees wrote their letter, a jury could infer that the reasons were bogus, and the real reason was retaliation.

 

Information here is correct at the time it is posted. Case decisions cited here may be reversed. Please do not rely on this information without consulting an attorney first.