Causation -- An Often Overlooked Element In Wrongful Termination Cases

By harley erbe

Financial Stress

A successful wrongful termination case requires you to prove that you were fired in retaliation for engaging in some sort of "protected activity."  Some employment laws, such as the FMLA, civil rights laws, or overtime laws, have specific rules and standards for retaliatory discharge claims.  Such claims are outside the scope of this post.  Instead, I want to focus on other types of wrongful termination claims, like those noted on our firm's Wrongful Termination webpage, that are not necessarily created by a state or federal statute but are instead derived from Iowa Supreme Court decisions.

The examples on our Wrongful Termination page refer to various types of "protected activity" that the Iowa Supreme Court has recognized.  Protected activities are those that you have a right to engage in without fear of retaliation from your employer.  It's illegal in Iowa for your employer to fire you because you engaged in a protected activity.  But it's not enough to merely prove that you were fired after engaging in protected activity.  You also have to establish a cause-and-effect link, or "causation," between your protected activity and your firing. 

The causation element of a wrongful termination claim requires you to prove that your protected activity was the "determinative factor" in your employer's decision to fire you.  A factor is "determinative" if it is the reason that tipped the scales decisively one way or the other, even if it was not the predominant reason behind your employer's decision to fire you.  So how do you prove causation, that your protected activity was the determining factor in your employer's decision to fire you?

First, you have to prove that your employer knew about your protected activity before you were fired.  The Iowa Supreme Court has made clear that wrongful termination cases fail if the employer has no knowledge the employee engaged in the protected activity until after the employee is fired.  Quite simply, an employer can't be motivated to fire you in retaliation for activity that the employer knows nothing about.

Second, another aspect of the chronology that's very important is the amount of time between your employer learning of your protected activity and your firing.  The longer the period of time between those two events, the harder it is to prove that your protected activity was a determining factor in your firing.  Conversely, a short period of time between the two events is good proof that there was a connection.

Third, any negative or hostile statements your employer makes about your protected activity are always useful evidence.  Maybe your employer criticized you for engaging in the protected activity.  Statements that prove retaliatory motive are especially good when they appear on paper or in an e-mail.

Fourth, disproving or minimizing your employer's stated reasons (legitimate excuses) for firing you is a common way to prove that your protected activity was the true determining factor in your discharge.  Employers usually try to claim that some legitimate discharge reason (poor performance, tardiness, violation of company policy, insubordination, etc.) existed and that the legitimate reason, and not your protected activity, led to your firing.  You're well on your way to winning your wrongful termination case if you can disprove your employer's allegations against you.  You can also try to demonstrate that your employer fired you for a very minor reason and that the discipline was excessive for your alleged wrongdoing (the punish didn't fit your supposed crime, so there must be some other reason behind your termination, such as your protected activity).

Fifth, it's always useful to find out how your employer treated other employees who engaged in the same protected activity.  For example, if you're suing your employer for firing you in retaliation for filing a workers' compensation claim, you'll want to know what happened to other employees who filed a workers' compensation claim against your employer.  If they've all been disciplined in some manner after filing their workers compensation claim, then that's good evidence that you likewise got in trouble for filing a workers' compensation claim.  But on the other hand, if nothing happened to other people who filed workers' compensation claims, then that can be used as evidence that your workers' compensation claim was unrelated to your termination.   

Finally, the same concept applies to learning about what usually happens to employees who committed the same termination-level misconduct that your employer claims you engaged in.  Say that your employer claims that the true reason for your firing was some company policy that you violated.  Well, what's the standard punishment for other employees who committed the same policy violation?  Does your employer fire everyone who engages in that type of policy violation, or were you singled out for especially harsh treatment compared to what happened to other employees in similar circumstances?  If you were singled out for harsh punishment, why?  Was it because you had engaged in protected activity and those other employees hadn't?  Or is there some legitimate, lawful explanation for why you received greater punishment than your employer usually metes out for similar policy violations?

Please contact us if you believe that your employer has wrongfully terminated you.  We'll be happy to learn about your situation to see if there's any way we can help out.

By Harley Erbe

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