It should be clear that when an employee engages in lawful, protected activity, an employer may not retaliate by firing the employee. Any subsequent firing must be based on separate and distinct conduct which warrants firing. A recently decided Fourth Circuit case, Carmack v. Commonwealth of Virginia, establishes that the passage of time may not be sufficient to overcome liability for retaliatory discharge, if the employer displayed antagonism or retaliatory animus towards the employee after the protected activity.
William D. Carmack was employed as Chief Financial Officer at the Southwest Virginia Higher Education Center (SWVHEC). In July of 2017, Carmack made a complaint to Virginia’s Fraud, Waste, and Abuse Hotline, alleging workplace misconduct by David Matlock, Executive Director, and others at SWVHEC, claiming they were “wasting and misusing” SWVHEC funds and resources and engaging in other financial improprieties.
Matlock was notified of Carmack’s complaint in October 2017. After Matlock was notified about the complaint: Matlock ceased meeting with Carmack on a weekly basis; Matlock no longer included Carmack on any financial business, but rather sought advice from other employees; Carmack was cut off from communicating with the Department of Planning and Budgeting; and rather than allowing Carmack to present SWVHEC’s financial information to the Board of Directors, Matlock assumed that role. Additionally, another senior employee publicly commented that Matlock had “taken care of” the complaint and that Carmack was “trying to cause trouble.” In January, five months after Carmack made his complaint, Carmack was terminated.
Carmack filed suit against the Commonwealth of Virginia, SWVHEC, and David Matlock, alleging wrongful termination from SWVHEC. Carmack alleged, in part, a violation of Virginia’s Fraud and Abuse Whistle Blower Protection Act.
Virginia’s Fraud and Whistleblower Protection Act prohibits an employer from discharging or discriminating or retaliating against a whistle blower. To succeed in a claim of retaliatory discharge, the plaintiff must establish: (1) he engaged in a protected activity; (2) he suffered a materially adverse employment action; and (3) a causal relationship exists between the protected activity and the adverse employment activity.
Here, the defendants filed a motion to dismiss, alleging Carmack failed to satisfy the causation prong. Specifically, the defendants alleged none of the facts alleged by Carmack bridged the temporal gap between the protected activity and his termination, pointing to the extended amount of time between the conduct and the firing. Carmack explained that while he filed a complaint in July, Matlock was unaware of the allegations until early October, and argued the antagonism and retaliatory animus he faced was evidence of causation.
The court discussed that where the “temporal proximity between a protected activity and allegedly retaliatory conduct is missing and/or attenuated,” a sufficient explanation must be provided explaining the gap. To determine whether a sufficient explanation has been offered, the court looks at multiple factors, including antagonism or retaliatory animus during the intervening period or inconsistent reasons for termination indicative of pretext. The court determined that the conduct Carmack alleged was sufficient to establish retaliatory animus in the time gap to infer causation, at the motion to dismiss phase of the proceeding. The court noted that Carmack also sufficiently alleged that Matlock was inconsistent with respect to who was responsible for his termination. Thus, the court denied the defendants’ motion to dismiss.
Employers must always be cautious when terminating employees that have engaged in protected activity. The employer must have a separate and distinct basis for firing the employee, and evidence of this basis should be clearly detailed in the employee’s file. Carmack makes clear that waiting an extended period of time before terminating an employee that has engaged in protected activity may not be sufficient to overcome liability for retaliatory discharge. Specifically, if there is evidence of “antagonism or retaliatory animus” towards the employee, a court may still find an employer is liable for retaliatory discharge even if there is a large gap between the employee’s protected activity and termination. In sum, employers should refrain from retaliating against employees who have engaged in protected activity, and also use caution to ensure termination decisions do not appear to be retaliatory.
If you need more guidance or information, contact the employment law experts at General Counsel, PC today at 703-556-0411. Attorneys at General Counsel, PC are specialized in labor and employment law and have experience working with business owners and individuals across Virginia, specifically in Fairfax County, Arlington, Loudoun County, and Prince William.