Once An Unlawful Decision – Always An Unlawful Decision

In yet another tough decision for employers from the Missouri Court of Appeals, the Court in Turner v. Kansas City Public Schools, Case No. WD78309 (April 5, 2016), held that once an employer makes an adverse decision allegedly based on an unlawful reason, it is extremely difficult to reverse that decision, even by not taking the adverse action at all.

Janice Turner, a secretary for the Kansas City Public Schools (“KCPS”), was furloughed after the 2010-11 school year.  After she filed a grievance, KCPS determined it had miscalculated her seniority and reinstated her.  Turner then filed another grievance in February 2012 alleging favoritism and an inability to obtain work supplies or coverage for lunch breaks.  The parties resolved this grievance.

In April 2012, after Turner had filed another grievance alleging hostile work environment, she received a Letter of Reprimand for various incidents of misconduct.  In May 2012, she filed a Charge of Discrimination with the Kansas City Human Relations Department alleging discrimination and retaliation for making complaints.  One week later, she received a letter of Final Reprimand for calling a student “dangerous” in front of other students and a parent.

During June 2012, KCPS administrators discussed the possibility of terminating Turner, but a Human Resources Manager stated she wanted to run the issue through the legal department first because of the pending Charge of Discrimination.  KCPS did not terminate Turner in June 2012, but transferred her to another school and gave her a final opportunity to improve.

Shortly after her transfer, KCPS terminated Turner for transferring three students into a different class without approval, being late one day, and absent another day.  Turner later commenced her lawsuit under the Missouri Human Rights Act (“MHRA”) alleging age discrimination and retaliation for filing her Charge of Discrimination.  At trial, the jury found for KCPS on the age discrimination claim, but for Turner on the retaliation claim, awarding her $50,000 in compensatory and $37,500 in punitive damages.  She also received an award of attorneys’ fees, costs, front pay and reinstatement.

On appeal, KCPS contended Turner failed to present substantial evidence of retaliation to support such a claim.  To make a submissible claim of retaliation under the MHRA, Turner had to show she was terminated, her protected activity – filing a Charge of Discrimination – contributed to the termination, and she sustained damages as a result.  KCPS alleged on appeal Turner could not establish the second element, which requires a condition “that contributes a share in anything or has a part in producing the effect.”  KCPS argued that because the termination did not occur when originally discussed, but in August 2012, almost three months after Turner filed her Charge of Discrimination, there could be no reasonable inference that the Charge contributed to the termination.

The Court of Appeals rejected KCPS’s argument, concluding the relevant inquiry was whether the Charge of Discrimination contributed to the decision to terminate her.  The evidence indicated KCPS intended to terminate Turner in June, less than a month after she filed her Charge.  Thus, even though no actual termination decision was made and conveyed to Turner in June 2012, the Court held the jury reasonably could have inferred that her Charge of Discrimination was a contributing factor in the decision made in June 2012 to terminate her.

The Court ignored the fact, however, that KCPS did not actually terminate Turner in June.  Rather, the Court focused on the lack of any credible explanation as to why KCPS had made the decision to terminate Turner in June in the first place.  In essence, the Court of Appeals has taken the position that once an employer makes a decision to terminate an employee – allegedly for an unlawful reason such as discrimination or retaliation – it cannot undue that decision, even by not taking the action contemplated in the first place.  Employers facing this situation should take care to make sure any decisions made after a previously discriminatory or retaliatory decision is based on its own, independent set of facts and is not tied to the prior action.  Otherwise, the prior unlawful motive can remain.

The St. Louis employment attorneys at McMahon Berger have been representing employers across the country in labor and employment matters, including all aspects of discrimination and harassment litigation, for nearly sixty years, and are available to discuss these issues and others.  As always, the foregoing is for informational purposes only and does not constitute legal advice regarding any particular situation as every situation must be evaluated on its own facts. The choice of a lawyer is an important decision and should not be based solely on advertisements.

Learn more aboutStephen B. Maule
Stephen’s practice includes all aspects of labor and employment law. He assists employers with immigration petitions to the U.S. Citizenship and Immigration Service, including H-1B, TN and permanent residency. He has also represented employers in investigations conducted by the U.S. Immigration and Customs Enforcement.