Employers – You May Not Dig Up Reasons for Termination


The U.S. Court of Appeals for the Third Circuit made this quite clear in a recent case involving an employee’s cell phone messages soliciting prostitutes while at work. While this behavior was quite clearly improper, unfortunately the employer’s search of the cell phone was also improper, according to the Third Circuit. It refused to endorse a rule that “would not only immunize employers who retaliate against employees only after they stumble upon something that would justify their termination; it would also incentivize such retaliatory forays.”

In Canada v. Samuel Grossi & Sons, Inc., an employee filed an EEOC charge, followed a month later by a lawsuit alleging violations of Title VII, §1981, the Americans with Disabilities Act, and the Family and Medical Leave Act. Two months later, while he was on vacation, the company decided to move lockers on the shop floor. In the course of doing so, they cut off a personal lock that the employee had on his locker and removed the items inside. One of those items was a cell phone, and the HR manager stated that she thought it could have been a company phone. She guessed the password and searched the phone, supposedly to determine if it was a company phone (it actually was not). She found text messages from a year prior, soliciting prostitutes during work hours. The employee was then fired for violations of company policies.

Under anti-discrimination laws, an employer may not retaliate against an employee for engaging in protected conduct, such as complaining about discrimination or harassment. An employer may offer a legitimate reason for taking an adverse action, but then the employee can offer evidence that the stated reason is a pretext for discrimination or retaliation – such as antagonism from the employer, differential treatment, or inconsistencies in the explanation.

The Third Circuit held that the employer’s motivation for investigating an employee can be relevant to whether its stated reason for termination is a pretext for discrimination or retaliation. In the current case, the Third Circuit found the company’s reasons for searching the phone to be “weak, implausible, contradictory, incoherent, and more likely motivated by retaliation.” It questioned why the locker had to be opened in order to move it and why the cell phone had to be searched in order to determine if it was a company phone – there were easier ways to make that determination, such as checking against the company’s list of those who had cell phones and the serial numbers of the phones. Text messages would likely not establish whether the phone was owned by the company – let alone a year’s worth of messages. The Third Circuit found the company’s actions supportive of a finding that it was attempting “to dig up dirt” on the employee, which could be in retaliation for his protected actions.

This case warns employers that, if an employee engages in some type of protected activity – like complaining of discrimination or harassment, or taking protected leave – they cannot go searching for reasons to terminate the employee. If, in the normal course of business, they discover information of terminable misconduct, they can fire the employee – but they need to demonstrate that the discovery was reasonable, wholly unrelated to the protected activity and consistent with how they have treated such misconduct previously.