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Impolite, Improper Form of Protest Negates Employee’s Retaliation Claim

By: Leizer Goldsmith

A decision this week by the United States Court of Appeals for the Second Circuit (New York, Connecticut), illustrates the crucial fact that employment discrimination plaintiffs must always be on their best behavior, no matter how shabbily the company treats them. Those who fail to follow this warning may see otherwise strong cases thrown out, or suffer defeat before a jury when they otherwise might have won.

In Matima v. Celli, the appellate court permitted a jury verdict for the defendant to stand, in a race/national origin and retaliation case. The court ruled that the jury acted properly when it ultimately found the defendant not liable, after concluding both that the plaintiff's firing had been motivated by retaliation, and that the defendant would have terminated the plaintiff's employment even absent its retaliatory motive, because of the plaintiff's poor behavior.

Matima, a black South African national, was an entry-level pharmacist for a pharmaceutical company. He complained in several ways that a supervisor was making racially motivated attacks on his integrity and character. The company performed an internal investigation and found no discrimination. Matima then complained that he was not being promoted, was receiving unfairly low evaluations, and was being harassed by personnel office officials with constant redundant requests to view his “green” card.

When the company failed to agree with Matima's contentions, Matima should have retained an attorney and let the lawyer speak with him about his complaints. Instead, Matima directly accused company employees of threatening him. Subsequently, upon being asked to meet with another official, Matima allegedly became irate (although Matima disputes this, and claimed at trial that he was threatened during the conversation). Then, he threatened management with a press conference regarding his concerns and sent a memorandum to management charging managers with defamation (libel or slander). The company responded to all this by suspending Matima without pay for “insubordination”.

When Matima filled out a time sheet indicating that his recent absences had been on account of “illegal retaliation,” the company responded by asking him to correct the sheet to indicate that he was out due to “disciplinary action” and “unapproved absence.” He refused, and was subsequently fired for “gross insubordination,” failure to follow instructions, and “creating such havoc and discontent in the lab that it was not a suitable work environment for the remaining people on the staff.”

The jury's verdict and the appellate decision upholding it in Matima, present employees who believe they are discrimination victims with a textbook example of what not to do in that unfortunate circumstance. The jury's verdict suggests that there may have been validity to Matima's underlying discrimination complaints, and his view that he was being retaliated against and harassed. However, the jury concluded, as have many judges and appellate courts, that employers may fire employees who behave disruptively, even if the disruption is directly related to their protected protests.

The proper way to protest discrimination is clearly-so the employer cannot later deny knowledge of the protest-and politely. The law simply does not recognize a right in the employee to be boisterous, disrespectful, or in any way disruptive, even in response to an employer's discrimination. Employees protesting discrimination must recognize that they will be carefully scrutinized-not only by the employer, but also by the courts. Winning a discrimination case is difficult enough without giving the boss a gift issue. Matima shows that discrimination plaintiffs must always attempt to keep their own behavior beyond reproach.


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