This guy’s been leaving work early on Fridays for years. Now all of a sudden it’s not OK. What’s that about?

Let’s say you have a teacher’s aide who is a Muslim.  When you hire him, he asks if it would be OK for him to be dismissed early on Fridays, as he usually leads the prayer service at the mosque on Friday afternoons.  You don’t anticipate any problems with this, so you agree to it.  A few years go by with this arrangement in place, and no complaints, no problems.  Then you find an interesting video on YouTube. The video shows your employee giving a lecture at the mosque.  In the lecture, he identifies himself as an employee at your campus, and then criticizes the school for exposing Muslim students (of which there are many) to the polytheistic belief system of Greek mythology.  Hmmm.

A few months later you revoke permission for your teacher’s aide to leave work early on Friday afternoons.   The teacher’s aide disregards this, and continues to leave early. So you fire him.

Do you think this would create a legal problem for you?

It would.  It did in Columbus, Ohio.

The employee, Abdurahman Haji filed suit, claiming that he suffered retaliation as a result of his exercise of First Amendment rights.  The 6th Circuit Court of Appeals ruled in favor of the school district on this one, but it was a closer call than you might expect.  The reason for the ruling in favor of the school district was because there was an intervening factor—something that happened after the principal saw the video, and before he revoked the prior permission. What happened was that the teacher who supervised Mr. Haji complained (for the first time) that his absence on Fridays had become disruptive.

The fact that the principal revoked the prior permission just a few months after seeing the video was problematic for the principal. The courts refer to this as “temporal proximity,” and view it as a factor that a reasonable jury could rely on to determine that the employee is being punished for engaging in “protected activity.” After all, there was no question that the lecture the man gave, and the subsequent publication of it on YouTube, was constitutionally protected free speech.  There was no question that revocation of a privilege he had enjoyed for several years was “adverse action.” So to win his case, Mr. Haji only had to prove that there was a cause and effect connection between the two. The “temporal proximity” of the two events helped his cause.  If he could prove that the revocation of his privilege was an act of retaliation, then the order that he stay at school on Fridays would be invalid. Thus the case turned on the issue of the revocation of his prior permission to leave early. Was this because of the YouTube video?

The court noted that it would rule for the school if the school could “present evidence of sufficient non-retaliatory reason to rescind the agreement” to allow the man to leave early.  The school did exactly that:

Ellingwood, Haji’s direct supervisor, complained in Spring 2008 to Principal Lewis about Haji’s absences for the first time.  She told Lewis that Haji’s early Friday absences caused substantial disruptions to her classroom.   Haji does not dispute that Ellingwood complained about him.  It is a sufficient, non-retaliatory reason to rescind permission for an employee to engage in otherwise permissible conduct in response to a direct supervisor’s complaint that the conduct directly interfered with the employee’s job duties.  Ellingwood’s complaint therefore demonstrates that Lewis’s rescission of the agreement was not retaliation for Haji’s YouTube video.

We suppose there are a few lessons to be drawn from this case.  First, rescission of a privilege can be viewed as “adverse action” even if you did not have to grant the privilege in the first place.  Second, the timing of events is important.  If the “adverse action” took place five years after the “protected activity” it would lack that “temporal proximity.” Third, documentation, as usual, plays a crucial role in litigation.  We wonder if the teacher’s complaint was really the first time the teacher ever complained about Mr. Haji’s absence on Fridays.  Maybe she groused about it in the teacher’s lounge. Maybe she badmouthed her aide during the Friday afternoon teacher Happy Hours.  We don’t know. All we know is that the court was convinced that when she complained to the principal about it, this was the first time she had done so.  That’s when Mr. Haji’s absences on Fridays went from “OK” to “not OK.”  That was the crucial piece of evidence that supported the “non-retaliatory” reason for Mr. Haji’s termination.

The case is Haji v. Columbus City Schools, decided by the 6th Circuit Court of Appeals on July 16, 2015.