When an African-American employee was terminated, he cried foul. His claims included retaliation and violations of 42 U.S. Code Section 1981 and Title VII of the Civil Rights Act of 1964. The case, Mitchell v. Mercedes Benz U.S. International, Inc., was eventually heard by the U.S. Court of Appeals for the Eleventh Circuit. The court’s decision hinged on whether the plaintiff could make a causal connection between his former employer’s actions and certain adverse outcomes.

History of charges

The plaintiff began working for Mercedes-Benz U.S. International, Inc. (MBUSI) in 1997. In 2008, MBUSI found that the plaintiff had falsified his time sheets and violated company policy by leaving work early, thereby receiving pay for work he didn’t perform. The plaintiff was put on final warning. A few months later, he was terminated for failure to report to work — a violation of MBUSI’s attendance policy.

The plaintiff filed a charge with the Equal Employment Opportunity Commission (EEOC) against MBUSI, alleging race discrimination and retaliation. He then filed a federal lawsuit, which was dismissed in 2010 pursuant to the plaintiff’s and MBUSI’s joint stipulation.

After applying for jobs in 2012, the plaintiff received conditional offers of employment. However, the offers were rescinded, allegedly after MBUSI gave negative references. In September 2012, the plaintiff brought another EEOC charge against MBUSI alleging that the company had made negative references to prospective employers in retaliation for his earlier charge and lawsuit.

A fresh start ... or not

In May 2013, the plaintiff began employment with TW Fitting, NA, LLC (TWF). The following month, he asked permission to use the company credit card to buy supplies, and the request was approved. However, in addition to buying supplies, the plaintiff used the card to buy lunch.

In July, TWF terminated the plaintiff, citing his unauthorized use of the company credit card. The plaintiff alleged that, before his termination from TWF, he saw two MBUSI employees visiting TWF. One of the employees asked him how his lawsuit against MBUSI was going and he replied that it was settled. The two employees also spoke with the plaintiff’s supervisor privately. The plaintiff believed that the MBUSI employees pressured TWF to terminate his employment.

The plaintiff filed a complaint against MBUSI and TWF, alleging among other things that TWF had terminated his employment at MBUSI’s request. MBUSI purportedly retaliated against the plaintiff by pressuring TWF, as well as by providing negative employment references to other potential employers. The trial court granted the defendant’s motion for summary judgment on all claims. The plaintiff appealed as to the retaliation claims.

Making the case

The appeals court affirmed that the plaintiff couldn’t establish a prima facie case of retaliation because he’d failed to provide sufficient evidence of a causal connection between his EEOC charges and the adverse actions. To establish a prima facie case for retaliation under Title VII and Sec. 1981, a plaintiff must show that:

1. He or she engaged in a protected activity,
2. He or she suffered an adverse action, and
3. There was a causal connection between participation in the protected activity and the adverse action.

The appeals court held that merely showing the alleged adverse action occurred sometime after the protected activity doesn’t prove causation. The plaintiff must establish that the employer was actually aware of the protected activity when the adverse action was taken.

The court also found that the plaintiff’s claim was speculative and that he’d relied on circumstantial evidence. There was no evidence that the two MBUSI employees had actually told TWF of the plaintiff’s EEOC charges and lawsuit, only that they may have mentioned it. That possibility is insufficient for a reasonable jury to find that TWF was aware of the plaintiff’s protected activity when he was terminated.

As for his claim against MBUSI, the court decided that, while a negative reference could be an adverse action, the plaintiff’s allegations failed to establish a cause of action. He didn’t present any evidence that the MBUSI employees who provided negative references to prospective employers had knowledge of the plaintiff’s protected activities. Therefore, there was no causal connection between the protected activities and the adverse action. In the end, the appeals court upheld the trial court’s grant of summary judgment.

Neutral stance is safest

If your company provides negative references for former employees to prospective employers, know that you could potentially face retaliation claims. To contain such liability, be sure to give only neutral references limited to employment dates and job titles.