Best Ohio Employment Attorney Reply: After I sued my employer for wrongful termination and returned to work as part of a settlement, can my boss refuse to promote me? Can my boss retaliate against me for reporting race or gender discrimination to HR? Can I sue my employer for retaliating against me?
It is a very rare occasion indeed when an employee files a lawsuit against an employer and after the lawsuit is filed, both parties agree that reinstatement is the proper resolution for the case. Perhaps the employer, after seeing the error of their ways, decides to have a change of heart and bring the employee back to the fold. Or maybe the employee themselves, so dedicated to their former position want nothing else but to return to work. What happens if an employee returns to work and they find themselves in a worse state than when they left? What if the employer decides to punish the employee for filing the lawsuit by stripping them of pay and benefits other employees who haven’t sued enjoy?
Title VII of the Civil Rights Act of 1964 makes it illegal for your employer to retaliate against you or any employee who has “made a charge, testified, assisted or participated in” any charge of discrimination. To make a case for unlawful retaliation under Title VII, an employee has to demonstrate that he or she suffered an “adverse employment action” as a result of engaging in protected activities. In Burlington Northern Santa Fe Railroad Co. v. White, the United States Supreme Court opined that an employer’s conduct will be held to be an adverse employment action when the conduct “would have been materially adverse to a reasonable employee or job applicant,” and the action could “dissuade a reasonable worker from making or supporting a charge of discrimination.”
Under Ohio law, an employer also cannot retaliate against an employee for complaining about discrimination or filing a lawsuit against the employer for discrimination. Ohio’s counterpart to Title VII’s provisions on retaliation, R.C. § 4112.02(I), likewise prohibits your boss or manager to retaliation against your or any employee for reporting or participating in an investigation of any complaints of employment discrimination or other protected activity. Specifically, R.C. § 4112.02(I) provides: “It shall be an unlawful discriminatory practice … for any person to discriminate in any manner against any other person because that person has opposed any unlawful discriminatory practice defined in this section or because that person has made a charge, testified, assisted, or participated in any manner in any investigation, proceeding, or hearing under sections 4112.01 to 4112.07 of the Revised Code.”
A recent case provides a good example. In Huan Linn v. New York State Dept. of Labor, the Court concluded that the employer engaged in unlawful retaliation when they decided to promote less qualified candidates based on the fact the employee filed a lawsuit against the company.
Let’s look at the facts. Linn had taken a civil service exam to qualify for a different position with the organization. Shortly after she passed a civil exam, Linn filed a lawsuit alleging Title VII
violations against the department. While litigation was ongoing, a supervisor in Linn’s department sent an email to other managerial employees asking if Linn should remain on the list for a new position because she had “recently filed a discrimination complaint against her former supervisor.” This is what we employment discrimination lawyers call a smoking gun. But, wait, it gets better. The email also requested if anyone could find a way to remove her from the list. After the email was sent out, individuals who were lower on the list were hired, skipping Linn altogether. The Court in its decision found that the email’s reference to a protected activity coupled with the fact that the individuals on the list were lower than Linn, was sufficient evidence to support a retaliation claim against the department. Specifically, the Court held:
Defendant argues that the emails described in the Complaint “are the only evidence proffered in the [C]omplaint that could conceivably . . . support a causal connection” between Plaintiff’s protected activity and Defendant’s failure to hire Plaintiff, but that Plaintiff has failed to show a causal connection between the emails and her failure to be hired from the LSR list. Defendant contends that, because Plaintiff failed to include in her Complaint the dates of either the emails or the hires, the “hires may have preceded the emails, which would eliminate any causal connection.” However, though Plaintiff does not include in her Complaint the dates of either the emails or the hires, she does allege that individuals listed below her on the LSR list were hired subsequent to Taylor’s emails. This allegation directly contradicts Defendant’s claim that a causal connection can be eliminated because Taylor may have sent the emails after Defendant hired other candidates instead of Plaintiff.
To the extent that Defendant argues that the Complaint implies that Taylor’s emails were sent in response to Plaintiff’s December 2013 EEOC complaint, rather than to a prior complaint, 6 that claim is both confusing and without merit. Plaintiff suggests nothing of the sort in the Complaint. First, Plaintiff states that she was terminated in September 2010 and filed a complaint in the Northern District of New York in October 2011. Plaintiff alleges that Taylor subsequently sent the emails in question. Finally, Plaintiff states that she filed an EEOC charge against Defendant in December 2013. Nothing in the Complaint suggests that Plaintiff meant to allege that Taylor’s emails referred to her December 2013 EEOC complaint. See generally id. The Court finds it clear from the order of the allegations presented in the Complaint that Plaintiff alleges that Taylor’s emails were sent subsequent to Plaintiff’s complaint following her termination, and prior to her December 2013 EEOC complaint.
Additionally, to the extent that Defendant intends this argument to suggest that Plaintiff can not show causation between her protected activity and the emails, that argument also fails. Taylor’s first email directly states that Plaintiff had previously “filed a discrimination complaint against her former supervisor.” Exactly which prior complaint the email references does not matter at he present stage. Title VII “makes it unlawful for an employer to discriminate against an employee ‘because he has made a charge . . . or participated in any manner in an investigation, proceeding, or hearing” against her employer. Baez, 2011 WL 5838441, at *5 (citing 42 U.S.C. § 2000e–3(a)) (emphasis added). Therefore, any discrimination complaint made by Plaintiff prior to Taylor’s emails would constitute a protected activity, and the emails’ direct reference to protected activity is sufficient to suggest causation between Plaintiff’s protected activity and Taylor’s emails.
What really gets me about this claim is that the employer knew that its employee was willing to go to the EEOC or file a discrimination charge. Having gone through that once again, why the hell did it poke the bear and retaliate? And, knowing her willingness and the likelihood of her filing a claim, why put their overt retaliation in writing? This just goes to show that some employer are really stupid.
Any retaliation from an employer for engaging in a protected activity is unlawful under Ohio and federal law. Once an employee makes a complaint regarding discrimination, the employer cannot punish the employee by refusing to consider them for promotions or benefits other employees who have not submitted a complaint have a right to obtain.
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