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“No Brainer” Terminations Can Become Close Calls When The Employee Has Engaged In Protected Activity (Part 4)

April 30, 2013

In our last post of the day discussing retaliation, we discuss two very interesting cases from the Fifth Circuit. Smith v. Xerox Corp., 371 Fed. Appx. 514 (5th Cir. Mar. 2010) and Smith v. Xerox Corp., 602 F.3d 320 (5th Cir. 2010)

Our paper addresses these cases in depth.

Kim Smith was employed by Xerox Corporation for approximately 22 years before she was terminated in January 2006. She worked as an Office Solutions Specialist, responsible for supporting Xerox dealers, or “agents,” who placed and serviced copying equipment in North Texas. For the majority of her employment, Smith received positive evaluations. By all accounts she was a very good employee who only two years before her termination was named to Xerox’s prestigious President’s Club, an annual award that is bestowed on only the top eight performing employees in the country. In January 2005 Steve Jankowski took over as manager of Xerox’s Central Region, which included the territory assigned to Smith. At the same time, the sales territories within Smith’s region were realigned. As a result, Smith’s territory and the number of agents that she supported were reduced. At that time, Smith’s sales performance began to decline.

In June 2005 Jankowski sent Smith a formal warning letter, which outlined various deficiencies in Smith’s performance and placed her on a 90-day warning period. The letter indicated that Smith was currently at only 63% of her revenue goals and that she was “below expectations” in several areas. Jankowski later revised the letter to correct certain errors therein and re-started the warning period. The 90-day period was the first step in Xerox’s Performance Improvement Process (“PIP”) and was set to end on October 25, 2005. Smith refused to sign the warning letter because she believed it was inaccurate. Instead, she sought a meeting with Jankowski’s supervisor, Jack Thompson, and also complained to a Xerox human resources manager, Joe Villa, all to no avail.

On October 27, 2005, at the conclusion of Smith’s warning period, Jankowski placed Smith on a 60-day probationary term, which was to expire on December 28, 2005. Jankowski’s letter to Smith informing her of the probation stated in part that Smith had met approximately only 70% of her revenue plan and had also failed in other performance areas. The letter warned Smith that failure to meet a satisfactory performance level, including making up her entire year’s shortfall and meeting 100% of her revenue plan, could result in termination of employment at the conclusion of the probationary period, or sooner if there were no evidence of improvement in the early stages of the period.
On November 4, 2005, Smith responded in writing to Jankowski’s letter. She agreed that she was not at her plan goals but disagreed with Jankowski’s assessment of other performance areas. She contended that the goals set for her did not reflect the “real world sales environment,” including the decrease in her territory, and that she was not being treated the same as other employees or given the same amount of time usually offered when someone misses her sales numbers. Smith asked Jankowski to reconsider the length of her time on probation. Jankowski indicated on November 8, 2005, that he did not believe he was treating Smith differently from any other employee on the team and that he would not reconsider his position on the length of Smith’s probation.

On November 17, 2005, Smith notified Jankowski that she had filed a discrimination charge against Xerox with the EEOC. Smith charged in her EEOC complaint that Jankowski had placed her in the PIP with the intention of terminating her employment and that he had done so based on her age, gender, and race. Smith’s letter advised Jankowski of the law’s prohibition of an employer taking action against an employee in retaliation for filing such charges. Smith was terminated in January 2006 at the conclusion of her probationary period, at which point she had achieved approximately 74% of her revenue goals.

Smith sued Xerox and a jury found in her favor on her retaliation claim. The district court, however, granted Xerox’s motion for judgment as a matter of law. Smith appealed. On appeal, the Fifth Circuit Court of Appeals found that there was sufficient evidence to support the jury’s verdict in Smith’s favor on her retaliation claim because:

–Evidence showed Jankowski was a difficult manager who did not like employees who stood up to him, and especially did not like Smith, thus leading to the inference that he is the sort of person who would retaliate. Smith, 371 Fed. Appx. at 516.

–Xerox’s policies generally state that counseling and coaching of employees should occur prior to the issuance of formal warning letters, yet Xerox offered no documentation supporting Jankowski’s claim that he counseled Smith before placing her on probation. Id. at 517.

–There was evidence from which a reasonable jury could have concluded that Jankowski had started the termination process just days after Smith filed her EEOC charge, and well before the expiration of her 60-day probationary term. Id. at 517-18.

–Just two weeks after Smith filed her EEOC charge, Jankowski issued her a “letter of concern” over two arguably trivial issues, and did so without talking to Smith to get her side of the story first – which Xerox’s own human resources manager, Joe Villa, testified was a violation of Xerox policy and looked like retaliation to him. Id. at 519. “Following so closely on the heels of Smith’s EEOC complaint, the letter was certainly probative of Jankowski’s attitude toward Smith and provided further context for Jankowski’s decision to seek Smith’s termination.” Id.

The Fifth Circuit rejected Xerox’s reliance on Clark County School District v. Breeden, 532 U.S. 268, 121 S. Ct. 1508 (2001). In Clark County, the plaintiff was transferred to a new position only one month after filing a lawsuit, and her retaliation claim relied solely on this temporal proximity. The evidence showed, however, that plaintiff’s transfer was contemplated by the manager before he knew about the suit. The Supreme Court held that employers “need not suspend previously planned transfers upon discovering that a Title VII suit has been filed, and their proceeding along lines previously contemplated, though not yet definitively determined, is no evidence whatever of causality.” Id. at 272, 121 S. Ct. at 1511. The Fifth Circuit stated: “Smith, unlike the plaintiff in Clark County, has not presented evidence only of temporal proximity. Smith was a long-tenured employee with no disciplinary history prior to 2005 who was subjected not only to termination shortly following the EEOC complaint but also to suspicious new charges of wrongdoing for arguably minor incidents following that complaint.” Smith, 371 Fed. Appx. at 520. Summing the case up, the Fifth Circuit held:

We think the evidence was sufficient for the jury to conclude that Jankowski’s animus toward Smith boiled over due to the filing of the EEOC complaint, which provided a motivating factor for the termination. In sum, Jankowski failed to follow Xerox policies as far as documentation prior to placing Smith in the disciplinary process; the termination process itself was set in motion by the transmittal of the termination request within days of the EEOC charge even though Smith was supposed to be on probation for 60 days; a subsequent letter of concern followed closely after the EEOC charge and leveled new and potentially serious accusations for incidents that were arguably minor and easily explained; and Villa admitted that the letter of concern was suspicious and indicative of retaliatory motivation.


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