Third Circuit holds that an employer’s decision to conduct an investigation can be used as evidence of pretext even if the investigation produces credible evidence of a violation warranting discharge

In Canada v. Samuel Grossi & Sons, Inc., Third Circuit held that an employer’s decision to conduct an investigation can be used as evidence of pretext even if the investigation later produces credible evidence of a violation warranting discharge. In the case, the company asserted that it had terminated an employee after a search of his phone confirmed he’d been soliciting sex workers during working hours. The employee asserted that the company had looked at his phone only in retaliation when he requested FMLA; he also asserted other claims including FMLA interference, disability-related claims and racial discrimination.

For the reasons we have already explained, we reject a rule that incentivizes employers to dig up reasons to fire an employee who has engaged in protected activity, and then immunizes them from suit based upon a subsequent fortuitous discovery of grounds for termination.

Here, as in Hobgood, there is a “ ‘convincing mosaic’ of circumstantial evidence,”⁶³ which, when taken as a whole and viewed in a light favorable to Canada’s case, could convince a reasonable jury that he was the victim of unlawful retaliation.⁶⁴ In other words, the evidence could support a finding that the search itself was retaliatory.