Mary Ellen Johnson worked at Southwest Research Institute for many years before she was fired. Some time before her termination, she complained about possible discrimination against her due to her gender. She filed an internal complaint with SWRI in June, 2012. She then filed a complaint with the EEOC on Aug. 3, 2012. Several days later, she was fired on Aug. 15, 2012. She was told the reason was failure to observe timekeeping requirements. She had a security clearance in her former position. She lost the clearance when she was fired. The timing of the termination alone suggests the employer was motivated by reprisal because she went to the EEOC.
The employer moved to dismiss the retaliation claim. It claimed she was fired because she lost her security clearance and only because she lost her clearance. If any employer is not motivated by retaliatory intent, but by something neutral, then she could not claim reprisal. When reviewing a motion to dismiss, a judge must look at what the plaintiff says she can show. To dismiss a lawsuit, the judge would have to find there was no set of facts that could support her claim. The employer must show “beyond doubt” that she cannot prove a plausible fact scenario for her retaliation claim.
The court reviewed the papers concerning her termination. It found that the documents were not clear. Neither the memo recommending dismissal or the email concurring in termination mentioned any loss of a security clearance. The letter to the Plaintiff notifying her of her termination does mention a lack of “trustworthiness.” That term matches terminology used for loss of a security clearance. But, said the court, it would be a stretch to conclude from the use of that term that her termination was based on the loss of access to classified material. The letter itself did not otherwise mention the loss of her security clearance.
She might have lost her clearance because she was fired. Or, she might have been fired immediately after losing her clearance. The clearance issue could have come before the termination, or after. The records submitted by the employer did not show one way or the other which came first.
Because the documents are not clear, the motion should be denied. A fact-finder, a jury, should determine what happened. See Johnson v. Southwest Research Institute, No. 15-297-FB (W.D. Tex. 9/28/2016). And, seriously, if the employer makes a claim regarding why someone was fired, but it cannot produce better evidence than the use of one term, with no apparent connection to the decision-making process, then it is either rather very unorganized or it is trying to mis-lead the court. Either way, the employer loses some credibility with the court when it makes an argument based on fairly weak evidence.