Chapter 20 - Retaliation Claims

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Disclaimer: The Treatise is based upon federal appellate court decisions from 1996 to 2008. We are currently in the process of updating the Treatise. Until that update is complete, it is possible that certain cases cited in the Treatise may no longer represent current law. ------------------------- Chapter 20 - Retaliation Claims Overview 20.100 In general 20.200 Proving retaliation claims by circuit 20.300 Protected activity 20.400 Adverse employment action 20.500 Causal link 20.600 Proffered reason and pretext 20.700 Claims of others 20.800 [Reserved] 20.900 Miscellaneous issues Detail 20.100 In general 20.110 Anti-retaliation statutes 20.111 ADEA 20.112 ADA 20.113 Equal Pay Act 20.114 42 U.S.C. § 1981 20.115 42 U.S.C. § 1983 20.116 FMLA 20.117 Rehabilitation Act 20.118 Title VII 20.120 Scope of anti-retaliation statutes 20.121 ADEA 20.121.10 Analysis same as Title VII 20.122 ADA 20.122.10 Analysis same as Title VII 20.122.20 No right to compensatory or punitive damages 20.122.30 No right to a jury trial 20.123 Equal Pay Act 20.124 42 U.S.C. § 1981 20.125 42 U.S.C. § 1983 20.126 FMLA 20.127 Rehabilitation Act 20.128 Title VII 20.128.10 In general 20.128.11 Scope of opposition clause vs. participation clause 20.128.20 Opposition clause 20.128.30 Participation clause 20.128.31 Whether testimony must be reasonable 20.128.40 Post-employment retaliation 20.130 Cases addressing scope of anti-retaliation statutes 20.131 Retaliation against employee who employer mistakenly thinks engaged in protected activity 20.132 Retaliation based on fact that co-worker, who is friend or family member, engaged in protected activity 20.133 Employee who involuntarily testified about his own discriminatory conduct 20.134 Employee willing to testify on behalf of another, but is never called 20.135 Employee who participates in EEO investigation by opposing the complainant [TOP] 20.200 Proving retaliation claims by circuit 20.210 Direct method (for all circuits except 7^th) 20.220 Indirect method (for all circuits except 7^th) 20.221 General principles 20.221.10 Prima facie case 20.221.11 Must plaintiff show that he is qualified for the position? 20.221.12 Burden of establishing prima facie case is not onerous 20.221.13 If "supervisory harassment" is involved, then the Sixth Circuit alters the prima facie case 20.221.14 Failure to hire case has additional requirements 20.222 ADEA 20.223 ADA 20.223.10 Retaliation claim 20.223.20 Interference claim 20.223.30 Whether plaintiff must be a "qualified individual with a disability" 20.224 Equal Pay Act 20.225 42 U.S.C. § 1981 20.226 42 U.S.C. § 1983 20.227 FMLA 20.228 Rehabilitation Act 20.229 Title VII 20.230 7^th Circuit's methods 20.231 Direct method 20.231.10 Survival of summary judgment 20.231.20 Circumstantial evidence can be used under the direct method 20.232 Indirect method 20.232.10 Similarly situated employee [TOP] 20.300 Protected activity 20.310 Definition 20.311 Employee must identify illegal employment practice 20.320 Reasonable belief requirement 20.321 Does reasonable belief requirement apply to participation clause and opposition clause claims? 20.322 Complaint involving same sex harassment that is found to be based on sexual orientation 20.330 Engagement in protected activity does not automatically shield employee from adverse employment action 20.331 Whether improper or disruptive conduct constitutes protected activity 20.332 Job performance problems that pre-date protected activity 20.340 Whether particular conduct constitutes protected activity 20.341 Informal complaint or conduct 20.341.10 Informal complaint to supervisor 20.341.20 Informal complaint by attorney 20.341.30 Informal contact with EEO or EEOC 20.341.40 Requesting an accommodation under the ADA 20.342 Formal complaint 20.342.10 Filing EEOC complaint 20.342.20 EEOC's issuance of right-to-sue letter 20.342.30 Complaint to employer that third persons, who are not employees, are being harassed 20.342.40 EEOC complaint must allege discrimination 20.343 Participation in employer's internal investigation 20.344 Refusal to implement discriminatory policy 20.345 Testifying 20.346 Illegal activity in furtherance of preventing workplace discrimination 20.347 Refusal to sign mandatory arbitration agreement 20.348 Another employee claims that this employee is being harassed [TOP] 20.400 Adverse employment action 20.410 Definition 20.411 Adverse employment action is more broadly defined in retaliation cases 20.412 Not everything that makes an employee unhappy is an adverse employment action 20.413 Determination is based on an objective standard 20.414 Context of the action matters in making determination as to whether it is materially adverse 20.415 Adverse action does not have to be work related 20.416 Definition in failure-to-hire cases 20.420 Cases applying definition 20.421 Compensation 20.421.10 Denial of pay raise 20.421.20 Denial of bonus 20.421.30 Minimal loss of pay 20.421.40 Failure to reimburse expenses 20.421.50 Leave time 20.421.60 Failure to offer severance package 20.422 Work duties 20.422.10 Denial of transfer 20.422.11 Delay in transfer 20.422.20 Demotion / lateral transfer or reassignment 20.422.21 Transfer to new location 20.422.22 Transfer to administrative duty 20.422.23 Constructive demotion 20.422.30 Denial of tenure 20.422.40 Last chance agreements 20.423 Work opportunities 20.423.10 Denial of training 20.423.20 Denial of opportunity to temporarily "be in charge" 20.424 Work environment 20.424.10 Supervisor or co-worker ostracism or harassment 20.424.11 Ellerth / Faragher defense 20.424.12 Analysis of co-worker harassment claims 20.424.20 Unfulfilled threats 20.425 Discipline and evaluations 20.425.10 Negative evaluations 20.425.20 Investigation of employee 20.425.30 Oral reprimand, counseling, or warning 20.425.40 Written reprimand, counseling or warning 20.425.50 Performance improvement plan 20.425.60 Suspension or administrative leave with pay 20.425.70 Suspension or administrative leave without pay 20.425.71 Suspension without pay, but reinstatement with back pay 20.425.72 Suspension without pay, but never served 20.426 Termination 20.427 Post-employment 20.427.10 Negative job reference 20.428 Miscellaneous 20.428.10 Medical evaluations 20.428.20 Counterclaim against employee 20.428.30 Employer making truthful police report 20.429 De minimis actions [TOP] 20.500 Causal link 20.510 Definition 20.511 Knowledge of protected activity 20.520 Cases applying definition 20.530 Level of proof necessary to establish causal link 20.531 Temporal proximity 20.531.10 Is temporal proximity, alone, sufficient 20.531.20 Close temporal proximity less probative where employer was contemplating adverse action before employee engaged in protected activity 20.531.21 Close temporal proximity less probative where employer was merely waiting until employee on leave returned to work before taking action 20.531.30 Close temporal proximity less probative where employer is simply denying a request made after employee engaged in protected activity 20.531.40 Lack of temporal proximity 20.531.50 First opportunity to retaliate affects temporal proximity analysis [TOP] 20.600 Proffered reason and pretext 20.610 Proffered reason 20.620 Pretext 20.621 Standard for proving retaliation 20.622 Lack of temporal proximity as means of disproving retaliation 20.630 Alternative means of establishing pretext 20.631 Inconsistent policies 20.632 Similarly situated persons 20.633 Temporal proximity [TOP] 20.700 Claims of others 20.710 Participation clause claims 20.720 Opposition clause claims [TOP] 20.800 [Reserved] 20.900 Miscellaneous issues 20.901 Retaliation by union 20.902 Retaliation based on protected activity at another employer 20.903 Employer liable for retaliation of supervisor 20.904 Post-employment retaliation based on refusal to provide information to prospective employer [TOP]


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