In Ferguson v MTSU the Tennessee Court of Appeals negated a $3 Million jury verdict for the plaintiff in a retaliation case because the plaintiff failed to prove that the decision-maker who allegedly retaliated against him had knowledge of the protected activity when the decision was made. The plaintiff filed an EEOC Charge and subsequently a lawsuit alleging race and national origin discrimination, and claimed the supervisor assigned him work outside of his restrictions in retaliation for those protected acts. A second lawsuit was filed alleging retaliation, and the cases were consolidated for trial. At trial the jury returned a defense verdict on the discrimination claims but awarded the plaintiff $3 Million on his retaliation claims.
The Court of Appeals reversed the jury’s verdict and dismissed the plaintiff’s case. The Court held that in a retaliation case under Title VII and the THRA the plaintiff must prove that the person who decided to take the adverse action had knowledge of the protected activity at the time the adverse decision is made. In so holding the Court of Appeals expressly rejected the argument that “general corporate knowledge” is sufficient to prove the causation element of a retaliation claim.
While this case is a significant victory for employers, (assuming it holds up on appeal) the result does not change the type of review that employers should undertake when any adverse action is proposed against an employee. Review the proposal thoroughly to make sure the action is warranted, consistent with company policy and that the employee is being treated the same as all other similarly situated employees. If the employee is known to have engaged in protected activity or is in a known protected class, make sure there is not a connection between the activity or class and the proposed action, and that everyone who has input in the decision is unbiased.
Interesting decision. It sounds like the “Sargent Schultz” defense “I know nothing!” is a live and well in the volunteer state. The jury needs to be properly instructed, and no doubt a properly crafted verdict with particulars about who knew what and when, might have helped the verdict survive appeal. Hindsight is always 20/20.