RETALIATION CLAIMS
THE GIFT THAT KEEPS ON GIVING
ARTHUR R EHRLICH
GOLDMAN & EHRLICH
20 SOUTH CLARK STREET
SUITE 500
CHICAGO, ILLINOIS 60603
312-332-6733
Arthur@GoldmanEhrlich.com
www.GoldmanEhrlich.com
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I.
RETALIATION FOR COMPLAINING ABOUT DISCRIMINATION
A. COVERS BOTH COMPLAINTS OF DISCRIMINATION AND ACTIONS OPPOSING
DISCRIMINATION
1. TITLE VII 42 U.S.C.A. § 2000e-3
Illegal to retaliate against employee "because he has opposed any
practice made an unlawful employment practice . . . or because he
has made a charge, testified, assisted, or participated in any manner in
an investigation, proceeding, or hearing"
2.
ILLINOIS HUMAN RIGHTS ACT 775 ILCS 5/6-101
same protections
II. WHAT ACTIONS ARE PROTECTED
A. FORMAL COMPLAINTS
IDHR, EEOC or Court actions
B. INFORMAL COMPLAINTS
Includes informal complaints to a supervisor. Maldonado v.
Metra, 743 F. Supp. 563 (N.D. Ill. 1990)
C. ONLY GOOD FAITH BELIEF IS REQUIRED
D. NO MAGIC WORDS REQUIRED TO BE PROTECTED
1. Clifford v. Patterson Companies, Inc., No. 08 C 0828, 2009 WL 3852447 (N.D. Ill.
Nov. 18, 2009)
Employee need not use any “magic words” such as “sex’ or “gender
discrimination” to be protected from retaliation under Title VII. But must “at
least say something to indicate ... [gender] is an issue”
E. FALSE COMPLAINTS NOT PROTECTED
BUT BE CAREFULL HERE AS JURY MAY BELIEVE COMPLAINT MADE IN GOOD FAITH
F.
COMPLAINT MUST, IN THEORY, VIOLATE DISCRIMINATION LAWS IF TRUE
EEOC charge alleging Red Sox boss discriminated against Yankee fan file
clerk has no Retaliation claim if later terminated
G. RETALIATORY ACTS TAKEN IN ANTICIPATION OF A
DISCRIMINATION COMPLAINT ARE ILLEGAL EVEN IF THE EMPLOYER’S FEARS WERE
WRONG
1.
Brock v. Richardson, (mere perception that plaintiff engaged in
protected conduct was sufficient for the anti-retaliation provision of the
FLSA).
2.
Saffels v. Rice, (employees were still protected even though the
employees had not engaged in protected conduct if their employer
mistakenly believed they had engaged in such conduct).
III. ADVERSE ACTION REQUIRED BUT STANDARD IS LESS THAN IN DISCRIMINATION
CASE
A. Standard set by Burlington Northern and Santa Fe Ry. Co. v. White 548 U.S.
53 (2006).
1.
Plaintiff must show that reasonable employee would find the
actions materially adverse such that the acts “might have
‘dissuaded a reasonable worker from making or supporting a
charge of discrimination.'"
2.
petty slights/minor annoyances not enough.
3.
Objective standard used BUT each case will depend upon the
particular circumstances, the “context,” and “constellation of
surrounding circumstances, expectations, and relationships”
B. ABSOLUTE BEST ANALOGY FOR ADVERSE ACTION
“Catbert, the Evil Director of Human Resources in the comic strip Dilbert, delights
in pouncing on employees' idiosyncratic vulnerabilities. Perverse cleverness that is
funny when limited to newsprint readily could be seen as discrimination when used
to discomfit real people.” Washington v. Illinois Dep't of Revenue, 420 F.3d 658,
662 (7th Cir. 2005)
C. MUST CONSIDER SERIES OF ACTS CUMULATIVELY
D. ECONOMIC HARM NOT REQUIRED
IV. MUST PROVIDE EVIDENCE THAT EMPLOYER KNEW OR SHOULD HAVE KNOWN OF
THE COMPLAINT
A. Zann Kwan v. Andalex Grp. LLC, 737 F.3d 834, 844 (2d Cir. 2013)
1.
Notice to officer of company is sufficient to impute general
corporate knowledge to defendant of Plaintiff's protected activity
B. Gordon v. New York City Bd. Of Educ., 232 F.3d 111, 117 (2d Cir. 2000)
Can prove knowledge based on the circumstances surrounding her
termination where circumstances evidence knowledge of the protected
activities...."
V. PROVING RETALIATION: CAUSAL CONNECTION
A. PRIMA FACIE CASE OF RETALIATION UNDER MCDONNELL DOUGLAS
1.
engaged in statutorily protected expression;
2.
suffered an adverse action
3.
causal link between the protected expression and the adverse action.
McDonnell Douglas Corp. v. Green,

B.
DIRECT METHOD OR CONVINCING MOSAIC OF EVIDENCE
Circumstantial evidence; i.e., evidence that allows a jury to infer intentional
discrimination by the decision maker. Rogers V. City of Chicago 320 F.3d 748,
753 (7th Cir. 2003)
1. Suspicious timing,
2. Ambiguous oral or written statements,
3. Retaliatory acts against other employees engaging in protected activity
4.
similarly situated employee were treated better than plaintiff
5. Evidence that the employer's stated reason for its actions is pretextual.
C. STANDARD UNDER STONE V. CITY OF INDIANAPOLIS PUB. UTILS. DIV., 281 F.3d
640, 644 (7th Cir. 2002).
1. If plaintiff shows that after engaging in protected conduct, "only he, and
not any similarly situated employee” who did not complain was
subjected to an adverse action and performed his job in satisfactory
manner, then the plaintiff is entitled to summary judgment.
2. plaintiff prevails on MSJ unless defendant offers evidence that he did not
act with a retaliatory motive.
D. TEMPORAL PROXIMITY BETWEEN PROTECTED ACT AND ADVERSE ACTION
1. Can establish a causal link if the adverse action closely followed
protected activity.
2. A "telling temporal sequence" required if relying only on
temporal proximity
3. Miller v. Fairchild Industries, Inc., 885 F.2d 498, 505 (9th Cir. 1989)
(Terminating employees 42 and 59 days after EEOC hearings sufficient to
establish prima facie)
4. Davidson v. Midelfort Clinic, 133 F.3d 499, 511 (7th Cir. 1998) (5 month
period between the protected activity "does not by itself" constitute
evidence of retaliation).


E. LACK OF TEMPORAL PROXIMITY DOES NOT KILL CASE
1. "First-opportunity" to Retaliate Doctrine

a. Porter v. California Dep't of Corrections, (9th Cir.
2004) (first chance to retaliate occurred two years
later when plaintiff was put under supervision of
person who retaliated)

2. Other Evidence of Retaliation under Direct Method Can
Still Show Retaliation despite gap in time

VI.
RETALIATION UNDER AMERICANS WITH DISABILITIES ACT

A. EMPLOYEE IS PROTECTED FROM RETALIATION IF HE/SHE
COMPLAINS ABOUT OR OPPOSES DISABILITY DISCRIMINATION
AGAISNT EMPLOYEE

B. EMPLOYER CANNOT RETALIATE AGAINST EMPLOYEE WHO
REQUESTS REASONABLE ACCOMODATIONS OR OTHER
RIGHTS UNDER ADA

C.
ELEMENTS AND EVIDENCE IS SIMILAR TO TITLE VII RETALIATION

D.
ILLINOIS HUMAN RIGHTS ACT HAS A SIMILAR PROVISION
VII.
FMLA RETALIATION
A.
FMLA PROHIBITS AN EMPLOYER FROM DISCRIMINATING OR
RETALIATING AGAINST AN EMPLOYEE WHO REQUESTS FMLA
LEAVE.
B.
NOT A “BUT FOR” ANALYSIS
C.
PLAINTIFF DOES NOT NEED TO PROVE RETALIATION WAS
ONLY REASON FOR TERMINATION; MAY ESTABLISH FMLA
RETALIATION BY “‘SHOWING THAT THE PROTECTED
CONDUCT WAS A SUBSTANTIAL OR MOTIVATING FACTOR
IN THE EMPLOYERS' DECISION.' "
GOELZER V.
SHEBOYGAN COUNTY, WISCONSIN, 604 F.3D 987, 995 (7TH
CIR.2010)

VII.
COMMON LAW RETALIATORY DISCHARGE

A.
MUST BE A TERMINATION

B.
MUST BE A VIOLATION OF A CLEAR PUBLIC POLICY BASED IN EITHER
STATE OR FEDERAL LAW.


1.
Courts more likely to recognize a policy or law that involves public
health and safety or criminal actions.

2.
Complaints relating to Federal tax laws are protected. Russ, 538 N.E.2d
at 697

4.
A clearly mandated public policy or law "must strike at the heart of a
citizen's social rights, duties and responsibilities"
Palmateer, 85 Ill.2d at 130

D. 5 YEAR STATUTE OF LIMITATIONS


E. BURDEN OF PROOF
1. CLEMONS V. MECHANICAL DEVICES CO. 184 ILL.2D 328
(1998)


A. PLAINTIFF AT ALL TIMES HAS BURDEN OF PROVING
CAUSAL CONNECTION BETWEEN PROTECTED CONDUCT
AND DISCHARGE.

B. BURDEN-SHIFTING FRAMEWORK IN EMPLOYMENT
DISCRIMINATION CASES IN MCDONNELL DOUGLAS CORP.
 DOES
NOT APPLY TO RETALIATORY DISCHARGE CLAIMS


VIII. ILLINOIS WHISTLEBLOWER ACT 740 ILCS 174/1
A. UNLIKE COMMON LAW VERSION, PLAINTIFF MUST ACTUALLY
REPORT POSSIBLE VIOLATION TO OUTSIDE AGENCY
B.
Must Have Reasonable Cause to Believe There Was a Violation

C. Prohibits Retaliation for Refusing to Participate in Activities
That Would Violate a Law

D. PROHIBITS TERMINATION AND OTHER ADVERSE ACTIONS
E.
STATUTE OF LIMITATIONS

1.
2 YEARS AGAINST PRIVATE EMPLOYERS

2.
1 YEAR AGAINST GOVERNMENTAL ENTITY UNDER TORT
IMMUNITY ACT


IX.
FAIR LABOR STANDARDS ACT (FSLA)
A. UNLAWFUL TO DISCHARGE OR IN ANY OTHER MANNER DISCRIMINATE AGAINST
EMPLOYEE WHO FILED ANY COMPLAINT OR WAS INVOLVED IN ANY PROCEEDING
UNDER FLSA

1.
CANNOT TERMINATE EMPLOYEE WHO COMPLAINS ABOUT OVERTIME OR
FAILURE TO PAY MINIMUM WAGES

B.
"FILE ANY COMPLAINT" MEANS ANY EMPLOYEE CONDUCT THAT PUT THE
EMPLOYER ON "FAIR NOTICE” THAT A GRIEVANCE HAS BEEN LODGED OR
REASONABLY MAKES THE EMPLOYER AWARE OF A WAGE OR OVERTIME PROBLEM

C. VERBAL COMPLAINT IS ALSO PROTECTED

X.
FEDERAL RAIL SAFETY ACT
49 USC § 20109


A.
CANNOT RETALIATE AGAINST ANY EMPLOYEE WHO REPORTS AN INJURY
OR SAFETY ISSUE, OR FOLLOWS DOCTOR’S ORDERS TO NOT WORK

B.
STANDARD IS IF EMPLOYEE'S PROTECTED ACTIVITY WAS A
"CONTRIBUTING FACTOR" TO THE ADVERSE ACTION.
ARTHUR R EHRLICH
GOLDMAN & EHRLICH
20 SOUTH CLARK STREET
SUITE 500
CHICAGO, ILLINOIS 60603
312-332-6733
Arthur@GoldmanEhrlich.com
www.GoldmanEhrlich.com
Follow me on Twitter @GoldmanEhrlich
Like us on Facebook Law Offices of Goldman & Ehrlich