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Employee fired for conduct in a mediation

ABA American Bar Association, Section of Litigation, Alternative Dispute ResolutionThis article was also published by the American Bar Association’s Section of Litigation, Alternative Dispute Resolution Committee.

Employee can be fired for behavior during mediation

In Benes v. A.B. Data, Ltd., 2013 WL 3838112 (7th Cir. 2013), the plaintiff filed a Title VII claim against his then current employer alleging sex discrimination. During the mediation, at a point where the mediator had the parties in separate rooms, the plaintiff, without permission from the mediator, stormed into the defendant’s room and stated loudly “You can take your proposal and shove it up your ass and fire me and I’ll see you in court.” Within an hour, as Judge Easterbrook slyly put it, the defendant accepted the plaintiff’s counterproposal and fired him. Plaintiff then abandoned his claim of sex discrimination and instead argued that the firing due to his mediation conduct was an unlawful retaliation for his bringing a Title VII action.

The Seventh Circuit upheld the dismissal of this claim because Title VII only bars retaliation for the act of filing a claim, and the plaintiff was fired for misconduct during a mediation. The court noted that the plaintiff could surely be fired if he assaulted the defendant’s representatives during the mediation, and his misconduct (going into the other side’s room without the mediator’s permission), while less serious, was nonetheless a clear breach of mediation protocols. The plaintiff was therefore lawfully fired for misconduct, not for the act of bringing a Title VII claim. The court also noted from a policy standpoint that allowing an employer to fire an employee for this kind of misconduct would not deter any reasonable person from pursuing a Title VII claim.