Image of Does an employer's failure to follow its personnel policies and practices prove retaliation?

Does an employer’s failure to follow its personnel policies and practices prove retaliation?

An employer’s departure from its customary practice or its personnel policies is relevant circumstantial evidence of retaliation.  In Hobgood v. Illinois Gaming Bd., 731 F.3d 635 (7th Cir. 2013), the court held that the employer’s extraordinary departure from policy and custom could support adverse inferences about the defendants’ motives.  Hobgood, 731 F.3d at 644-46.  In reversing summary judgment, the court considered that the employer initiated the investigation only after it learned the whistleblower had engaged in protected conduct.  Id.  And the evidence indicated that the employer had already decided to terminate the whistleblower, even if it meant deviating from a basic and sound standard policy. Id.  This could support an inference of retaliation because “’[s]ignificant, unexplained or systematic deviations from established policies or practices can no doubt be relative and probative circumstantial evidence of [unlawful] intent.’”  Id. (internal citations omitted).

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Jason Zuckerman, Principal of Zuckerman Law, litigates whistleblower retaliation, qui tam, wrongful discharge, and other employment-related claims. He is rated 10 out of 10 by Avvo, was recognized by Washingtonian magazine as a “Top Whistleblower Lawyer” in 2015 and selected by his peers to be included in The Best Lawyers in America® and in SuperLawyers.