Some employers believe that they are prohibited from taking an adverse action for legitimate, non-retaliatory reasons against an employee who has complained of discrimination until a lengthy period of time has elapsed following the complaint. In affirming a district court’s grant of summary judgment to an employer, the Second Circuit Court of Appeals recently confirmed that the law is to the contrary. See El Sayed v. Hilton Hotels Corp., 627 F.3d 931 (2d Cir. 2010), aff’g 2009 WL 5064354 (S.D.N.Y. Dec. 16, 2009).

In El Sayed, the plaintiff was a United States citizen of Egyptian descent who was Muslim. The plaintiff began working for his employer in late 2004 as an Assistant to the Housekeeping Director and reported to the employer’s Housekeeping Director during his tenure. In July 2006, the plaintiff complained to the Housekeeping Director about another employee’s alleged slur. The other employee was questioned about the allegation; although she denied making the remark, she was warned that such language was offensive and would not be tolerated.

In August 2006, the Housekeeping Director discovered that the plaintiff had worked at another hotel before joining Hilton. The plaintiff had not disclosed this prior employment on his employment application, notwithstanding the requirement that applicants identify all positions held in the last ten years and the application’s warning that misrepresentations were grounds for discharge. The plaintiff was confronted about this omission and confirmed he had held this previous job. The plaintiff explained that he had not disclosed the prior position because it only lasted one week; further investigation by the employer revealed that the plaintiff had held this job for nearly two months and not just one week as he had claimed. The employer terminated the employee’s employment for violating its Code of Conduct by omitting past employment from his employment application and for misleading his supervisors when he was confronted about the omission.

The district court granted the defendants’ summary judgment motion in its entirety, including with respect to the plaintiff’s claim that he had been terminated in retaliation for the complaint he made approximately three weeks before his termination. The Second Circuit affirmed the district court’s decision — notwithstanding that the plaintiff was discharged a short time following his complaint — holding:

[T]he temporal proximity of events may give rise to an inference of retaliation for the purposes of establishing a prima facie case of retaliation under Title VII, but without more, such temporal proximity is insufficient to satisfy [the employee’s] burden to bring forward some evidence of pretext.  

Because the employer had presented legitimate, non-retaliatory reasons for the employee’s discharge — the omission of certain prior employment history from his employment application (an omission conceded by the employee), which was grounds for termination under the employer’s employment policies — and the plaintiff produced no evidence other than temporal proximity in support of his retaliation claim, the Second Circuit ruled that summary judgment was proper.

The El Sayed case illustrates that an employer may take an adverse action against an employee for legitimate, non-retaliatory reasons notwithstanding a recent complaint of discrimination by the employee. Of course, in determining the timing of its action, the employer should consider the prudence of letting some time elapse if such delay does not adversely affect the employer’s business interests. Moreover, employers should keep in mind that El Sayed presented a situation in which the employee clearly breached the employer’s policies and that conduct was discovered shortly before the adverse action was taken. The facts are often not quite so clear, particularly where the employee is terminated for poor performance.  

El Sayed further illustrates that it is critical for employers to have employees complete their new hire documents, such as employment applications, in a comprehensive and truthful manner, and to apprise employees that their failure to complete such documents in such fashion may result in disciplinary action, up to and including termination of employment. When an employer discovers that the employee may have omitted information or lied on his or her new hire documents, the employer should confront the employee immediately regarding this issue; an employee’s concession of the omission or misrepresentation or further lies about the issue may turn out to be important evidence in a subsequent action brought by the employee — as it turned out to be for the employer in the El Sayed case.