Where there’s smoke, there may be fire – at least, that appears to be a key takeaway from the Seventh Circuit case of Ledbetter v. Good Samaritan Ministries. The holding in this case is predicated on the notion that suspicious timing in an adverse employment action can give rise to a claim of retaliation under Title VII in absence of other solid evidence.

The plaintiff, Linzie J. Ledbetter, worked at a homeless shelter. In June of 2010, he was reprimanded by the executive director and another supervisor for allegedly intimidating and threatening one of the residents. That month he filed a charge of racial discrimination and retaliation with the EEOC and then filed an employment discrimination suit on September 24th. Four days after he filed the suit, however, the employer alleged that another employee had been frightened and humiliated by Ledbetter and he was again warned about his conduct. On October 4th, he filed another charge with the EEOC, claiming he was facing racial discrimination and retaliation based on his first EEOC charge. The next day, the executive director and the president of the board of directors then held a meeting with him again to warn him, after which Ledbetter allegedly began to accuse members of the staff and the board of lying and trying to get him fired.

Where this case gets tricky is on October 14th. On this date, the executive director and Ledbetter’s supervisor allegedly met and decided to fire Ledbetter, although they didn’t make any note of it and didn’t immediately let Ledbetter know. On October 19th, Good Samaritan became aware of the new EEOC charge. Ledbetter was then fired the next day. Ledbetter brought suit, but the District Court granted summary judgment for the defendants. On appeal, the Seventh Circuit reversed the decision and remanded for trial.

The timeline of events in this case was too suspicious to escape scrutiny. Ledbetter’s firing literally the day after the employer received notice of an EEOC charge brought too much into question about the employer’s motives in firing him. Even in somewhat charitable light, if the employer viewed the EEOC charge as another false accusation and the last straw against Ledbetter, firing him because of the charge becomes prima facie retaliation. On receiving the second EEOC notice, the employer should have delayed any adverse employment decisions pending the outcome. Instead, the employer had to both explain that it did not document its decision to terminate Ledbetter and then try to account for why it took a full six days after making the decision to terminate Ledbetter to actually effectuate the firing. With very thin evidence to counteract the presumption created by the timeline of events, the employer couldn’t prove that the ‘smoke’ in this case was merely that.

It may go without saying, but employers should be wary of instituting any adverse employment action against an employee any time contemporaneous with receipt of notice that the employee has filed any sort of antidiscrimination charge against the employer. Courts consistently uphold retaliation claims under these laws, and any actions that appear to be consistent with retaliation from a timing standpoint will have to overcome stronger presumptions. Do not let yourself be a victim of bad timing.

As with the case in Monday’s posting, the true culprit in Ledbetter is the failure of Good Samaritan to fully document every incident or action concerning their employee, Linzie J. Ledbetter. Once again, the employer may well have won at summary judgment but for its inability to produce documentation to back up claims evidenced through bare and self-serving testimony. The common thread in this week’s posts is that while the holdings in these cases find in favor of the plaintiff at the appellate level, the appeals both may have gone a completely different direction had the employer done what all employers should do – document, document, document. Both courts in this week’s posts take great pains to point out that the employers, in alleging poor conduct or performance on the part of the employees, failed to produce any contemporaneous documentation to support these allegations. The simple acts of writing down incidents of poor performance or the decision to fire an employee might have saved the employers in the cases in these two posts. Let that be a lesson to all others – document everything.