Jottings By An Employer's Lawyer

Wednesday, November 01, 2006

Intervening Events - A Classic Example


When a co-CEO claimed he was terminated in violation of the Minnesota Whistleblower statute less than one month after he reported a possible violation by the company of federal income tax laws in the way it paid its Board members for mileage, he probably thought the timing alone would get him past the prima facie case stage. Two problems -- one, the court pointed out, as not all courts do clearly enough, that generally timing alone is not sufficient to meet even a prima facie case; secondly, in this case intervening events "undermined any causal inference that a reasonable person might otherwise have drawn from temporal proximity." Freeman v. Ace Telephone Association (8th Cir. 11/1/06) [pdf].

And just what were the intervening events:
Two weeks after Mr. Freeman made his report to the board about the mileage issue, he admitted, in a sworn statement, to having a sexual relationship with the female employee and continuing that relationship after he promised the board that he would end it. He also admitted, moreover, that he lied to the board president, his co-CEO, and the company's human resources director about the relationship, that he used a company credit card to buy Viagra to continue the sexual relationship, and that he purchased private cell phones for himself and the female employee so that they could communicate secretly.
This case may also be part of a new employment law maxim - any time you see Viagra mentioned in the opinion, the employee is likely to lose.

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