An employee’s negative reaction to counseling or a warning may cause the employer to reconsider the type of disciplinary action taken. For example, the company may initially intend to issue the employee a warning, but their argumentative reaction to counseling may lead the employer to conclude that termination is a better option. Last week, the Fourth Circuit Court of Appeals (which includes North Carolina, South Carolina, and Virginia) vacated a grant of summary judgment against an employee who displayed anger and profanity when complaining to his supervisor about alleged harassment. 

In Stewart v. GES Recycling South Carolina LLC, the plaintiff was an African American employee who claimed that he had been subjected to repeated instances of racial harassment. He complained to his manager about this treatment, using repeated profanities and loud arguments. The employer terminated him for this conduct and the employee filed suit alleging discrimination and retaliation under §1981. The district court granted summary judgment to the employer, concluding that the employee had been fired for his outburst and not in retaliation for his earlier harassment complaints.

On appeal in a 2-1 decision, the Fourth Circuit panel reversed this decision on the retaliation claim, concluding that there were material factual issues as to the employer’s motivation behind the termination decision. First, the court noted uncertainty in the evidence provided regarding the belligerent nature of his behavior. Second, the panel majority noted that the use of profanity was widespread throughout the company and may not have been a plausible basis for termination decision.

In a different factual context, an employee’s outburst may be solid grounds for termination. However, when the workplace itself appears to tolerate, if not encourage, this kind of behavior, the employer should not rely on the employee’s uncivil conduct alone as a defense to retaliation claims.

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