Defense Win in Retaliation Case

Defense Win in Retaliation Case Jason Doiy Jury box..Photo by Jason Doiy.2-9-11.054-2011

Next time Brad Dowell defends a corporate client against a former employee’s retaliation lawsuit, the Cantey Hanger partner knows what his strategy will be from the outset.

“I will focus on what the plaintiff did that was retaliatory-worthy,” said Dowell, who won a take-nothing verdict for a corporate defendant in McCauley v. McDonald Transit Associates, which was filed in the 170th District Court in Waco.

In an amended complaint filed Nov. 2, 2012, Gary McCauley alleged that McDonald Transit Associates retaliated against him after he documented a company senior supervisor’s alleged sex discrimination and sexual harassment of a subordinate employee, a female who filed a formal complaint of sexual harassment in 2007. McCauley alleged that while he and his family were out of state on vacation, a company investigator called to ask about the woman’s allegations, and he “confirmed numerous charges of sexual harassment made by this female employee.” Shortly thereafter, while he remained on vacation, his supervisor called and asked him to return, launching what McCauley alleges was “the beginning of retaliation.” McCauley sought damages, exemplary damages and attorney fees for his claim of discrimination due to a hostile work environment and retaliation.

In amended answer filed May 20, McDonald Transit denied the allegations and stated as an affirmative defense that McCauley was an “at will” employee and was not terminated for any impermissible reason.

After a four-day trial and one hour of deliberation, a jury on June 5 issued a take-nothing verdict and decided that the company had not terminated McCauley for participating in a discrimination investigation and that he had engaged in conduct that gave the employer a valid reason to fire him.

Dowell expected a challenge when his client faced a retaliation claim.

“I tell my clients, juries may forgive you for the underlying discrimination. But they get incensed when you retaliate,” Dowell said.

But in this case, as he teased out the “truth,” Dowell said, he concluded that the plaintiff had played “an insignificant role” in the investigation into the allegations of sex discrimination and sexual harassment. That investigation was completed in 2007. Dowell thinks that date made a strong impression on the jury and noted that McCauley was not terminated until 2010. Ultimately, Dowell concluded about his recent win, “it’s easy when the truth is on your side.”

Rebecca Fisher, a Waco solo, who represents McCauley, did not return a call for comment.

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