“Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties. Cases in the series can be found by issue and by judge at this link.

Trump Eighth Circuit judge Ralph Erickson cast the deciding vote to affirm the dismissal of a retaliation claim by a worker who contended that he was retaliated against and fired because he raised complaints about race and disability discrimination. The November 2020 decision is Robinson v. VSI Construction Inc.

Jhonathan Jontae Robinson, an African American man, applied for a job with VSI Construction. During his job interview, he also disclosed that he suffered from post-traumatic stress disorder and related issues for which he intended to seek treatment. Robinson was hired, but by a staffing agency to perform work for VSI, which he contended was different from how comparable white employees were treated.  Robinson also thought he was being paid less. When he complained by phone to management, he initially admitted he did not think he was treated differently because of his race, but then decided he was concerned about the issue and asked to meet in person with a supervisor. Management refused and terminated his work with VSI “a short time later.”

Acting on his own without a lawyer, Robinson filed an administrative complaint with a state agency and then a federal court lawsuit against VSI, claiming both that he was discriminated against based on race and disability and retaliated against for raising his complaints. In a relatively short opinion, the district court dismissed the case, contending that Robinson’s complaint was insufficient to allege illegal discrimination or retaliation.

Again acting without a lawyer, Robinson appealed to the Eighth Circuit. In a one-paragraph unsigned decision in which Trump judge Erickson provided the deciding vote, the court of appeals affirmed the dismissal of the case. The majority’s only explanation was that it had “carefully reviewed” the record and arguments and could “find no basis for reversal.”

Judge Jane Kelly partially dissented. Although she agreed with the dismissal of the discrimination claims, she disagreed on the retaliation issue. Noting that the courts should “liberally construe” complaints that are filed by an individual without a lawyer, she wrote that based on a careful analysis of Robinson’s complaint, he had “met [the] burden” to allege sufficient facts to state a valid claim of improper retaliation. As Kelly explained, Robinson contended that he had “complained to his employer of suspected race- and disability-based discrimination,” but that he was then fired shortly after that. This “quick termination,” Kelly continued, “plausibly alleges a causal connection between his protected activity and an adverse employment action.” The case should have been remanded to the district court, Kelly concluded, so that Robinson could have a chance to prove his retaliation claim.

As a result of the deciding vote by Trump judge Erickson, however, the dismissal of Robinson’s complaint was affirmed, and he will not have that chance.