Can a thumbs-up emoji prove retaliation? Court says …

Terminating employees is never easy, but it’s part of the job for HR. It’s helpful to follow a termination checklist to avoid communication mistakes that can cause legal headaches.

Case in point: A manager in Missouri sent a text suggesting a “new plan” one day after an employee raised concerns about age bias. A company leader seemed to give the OK by sending a thumbs-up emoji – and this exchange became the focal point in a retaliation lawsuit.

Team quits on director

From 2012 to 2020, Deborah Lightner worked for Catalent. At the time, she was between the ages of 56 and 64.

During her employment, Lightner received several promotions, eventually being promoted to “Director, Project Manager.”

In 2018, approximately a year after Lightner’s promotion to the director role, three employees on her team resigned, citing concerns about management and workloads. Two specifically said Lightner was the reason for their departure.

During Lightner’s 2019 year-end review, her performance was rated as “Partially Met Expectations,” which was the second-lowest rating on a five-point scale.  

By February 2020, two more employees on Lightner’s team gave their notice, with both saying that Lightner was a contributing factor in their decision to leave.

Management and HR decided action was necessary. They considered three options for Lightner:

1. Placing her on a performance improvement plan (PIP)
2. Demoting her to a lower-level position, or
3. Terminating her employment and offering a severance package.

Members of the management team were concerned about Lightner running a department while on a PIP.

On Feb. 13, Lightner attended a midyear review. There, she was informed that she was rated as “not on track” and given options of remaining in her current role on a PIP or being demoted to a senior manager role.

She raises age bias concerns

Five days later, Lightner emailed the management team, saying she believed her age was a factor in her employment options. In the same email, she informed management that she chose to remain in her current role on a PIP.

On Feb. 20, the management team met with Lightner and informed her that staying in her current role on a PIP was no longer an option. She could accept either a demotion or a severance package.

Lightner said she didn’t want a demotion. The company then presented her with a proposed separation agreement with a severance package and gave her 21 days to review it.

The next day – a Friday – Lightner worked from home. The following week, she took PTO.

On Friday, Feb. 28, Lightner received a text message from her direct supervisor, Reid Tonik. He asked her whether she intended to accept the demotion to a senior manager role.

Lightner responded to Tonik via email, stating that she believed the company was retaliating against her for raising a complaint of age discrimination. Tonik emailed Lightner the following Monday, March 2, explaining that if she didn’t report to work the following day, on March 3, then the company would consider that as her resignation.

Lightner didn’t report to work. Instead, she sued the company, asserting claims of age discrimination and retaliation.

At some point during the proceedings, the court ordered the company to produce certain text messages between members of Catalent leadership from the day following Lightner’s complaint of age discrimination. 

Ultimately though, the court didn’t consider the evidence from the texts and granted the company’s motion for summary judgment. Lightner appealed to the Eighth Circuit.

Court: No age discrimination

The Eighth Circuit rejected the age discrimination claim. It said that Lightner was not similarly situated to the comparator she presented, as “several distinguishing circumstances” existed. Among other things, the departing members of Lightner’s team specifically pointed to her lack of leadership when they resigned. But that wasn’t the case with the comparator, the court pointed out.

The appeals court also rejected Lightner’s allegation that “certain negative, age-related comments” showed age bias. Specifically, Lightner alleged that the company’s Global Director of Product Management Kristen Devito said in a meeting that “she did not think Lightner was the ‘long-term solution’ for the director role.”

But alone, Devito’s comment wasn’t enough to show age bias, the Eighth Circuit explained, noting that courts have held that “the phrase ‘long term plans’ does not necessarily have an age-based meaning.”  

The age discrimination claim failed, the Eighth Circuit held. It affirmed the ruling on that claim in the company’s favor.  

Did text, emoji exchange show retaliation?

Turning to the retaliation claim, the Eighth Circuit took a closer look at the text exchange from the day after Lightner’s age discrimination complaint. So who sent what to whom?

Lightner’s direct supervisor Tonik sent the text to Devito, the Global Director of Product Management.

In the text, Tonik shared that he was “[t]aking the PIP off the table” due to a “new idea” from the HR manager. The text sought Devito’s approval to carry it out. She then “responded affirmatively with a thumbs-up emoji,” the appeals court noted.

On appeal, Lightner argued that the district court made the wrong call when it found “no sufficient evidence to support more than a temporal connection between protected activity and an adverse employment action.” She said it should’ve looked at the text exchange.

The Eighth Circuit agreed with Lightner on this point. It determined that the exchange suggesting and approving the new idea to take the PIP off the table after Lightner made her age bias allegation supported “more than a temporal connection” for her retaliation claim.

It found the district court abused its discretion by not considering the evidence and agreed to consider it when weighing the retaliation claim.

Why employee gets a do-over in court to prove her claim

To state a valid retaliation claim here, Lightner had to show:

1. She complained of age discrimination
2. She suffered an adverse employment action, and
3. There was a causal inference of retaliation.

The parties agreed on several facts: Lightner was told she was not “on track” and was given the choice of going on a PIP, being demoted or being terminated with severance. In an email, she raised concerns about age discrimination and chose the PIP option. Within two days, the company told Lightner that the PIP was no longer an option – her only options were a demotion or severance package.

That short time frame between the complaint and adverse employment action could suggest a causal inference of retaliation, the court noted.

Next, the court said it had to add in the text exchange. It occurred just one day after Lightner raised claims of age discrimination. The text message suggested a “new plan” to remove the PIP option for Lightner and sought approval, which appeared to be granted via the thumbs-up emoji from a company leader.

This newly considered evidence from the text and emoji bolsters the inference of retaliation, the Eighth Circuit held. It reversed the ruling in the company’s favor and remanded the case for further proceedings.

Lightner v. Catalent CTS (Kan. City), LLC, No. 22-2452, 2023 U.S. App. LEXIS 34140 (8th Cir. 12/26/23).