Timing Is Everything – Except In Wrongful Termination

by Ruth Horvatich

Horvatich, Ruth
(402) 341-3070

Employers must be aware of the potential for retaliation after an employee engages in a protected activity, such as filing a workers’ compensation claim. However, as exhibited by a recent Nebraska Court of Appeals case, this should not inhibit employers from terminating employees for legitimate, nondiscriminatory reasons. Although the timing of a termination may look suspect, in wrongful termination cases, timing isn’t everything.

In Teetor v. Dawson Public Power District, the plaintiff was an at-will operations manager of the power district and generally received positive performance reviews from his superior. However, after he held a meeting with employees regarding their interest in forming a labor union, several employees filed grievances alerting the employer of the plaintiff’s abusive management style, describing it as “threatening” and having a negative effect on employee morale. After an unsuccessful conversation with the plaintiff regarding the grievances and an investigation, the decision was made to terminate the plaintiff’s employment.

Just prior to his termination, the plaintiff had filed a workers’ compensation claim based on mental anxiety. Also, the day before the plaintiff’s superior informed him of his termination, the plaintiff had filed a grievance against his superior over the superior’s decision to allow an employee to return to work after consuming alcohol.

The plaintiff filed suit alleging wrongful termination. His claims included that his employment was terminated (1) in retaliation for his filing a grievance against his superior relating to his superior’s decision to allow an employee to work after consuming alcohol; (2) in retaliation for his filing a workers’ compensation claim; and (3) to persuade the employer’s employees, who did not like the plaintiff, to reject a labor union.

The Nebraska Court of Appeals affirmed the district court’s determination that the plaintiff failed to show sufficient evidence to establish that he was wrongfully terminated. The court concluded that the most that could be said about the plaintiff’s claims was that his termination of employment was “close in time” to his filing a grievance, his filing of a workers’ compensation claim, and an employee vote concerning formation of a union. The plaintiff could not show that the legitimate grounds for the termination of his at-will employment—his abusive management style—were pretextual.

Under Nebraska law, unless constitutionally, statutorily, or contractually prohibited, an employer, without incurring liability, may terminate an at-will employee at any time with or without reason. In wrongful termination of at-will employment cases, an employee may show that a discriminatory reason caused his termination by exhibiting the proximity in time between his protected actions and his termination. However, this timing, by itself, will not be enough to overcome an employer’s legitimate, nondiscriminatory reason for the employee’s termination.

This case provides a reminder that an employee’s participation in a protected act, such as filing a workers’ compensation claim, will not necessarily shield the employee from an adverse employment action. This case also displays the importance for employers to protect themselves by always documenting the legitimate, nondiscriminatory reasons for taking any adverse employment action against an employee.


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