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How Do I Prove A Claim For Post-Employment Retaliation?

Published By | Mar 21, 2022 | Employment Discrimination, Employment Law, Retaliation |

Best Employment Discrimination & Retaliation Attorneys Answers: Can my employer sue counter-sue me after I file a discrimination or wrongful termination claim against it? Can my boss retaliate against me for reporting race or gender discrimination? Can I send work materials to my personal email address?

Yesterday, our employment discrimination lawyers discussed one of the holdings in the recent Sixth Circuit Court of Appeals case, Aday v. Westfield Ins. Co., No. 21-3115, 2022 WL 203327, at *1 (6th Cir. Jan. 24, 2022). (Best Law Read: How Do I Prove A Failure Hire Case?). In that blog, our employment law attorneys discussed how to best prove a wrongful failure to hire and the facts of the case. As brief synopsis of the facts, Steven Aday was hired by Westfield in 2005 after 28 years prior experience in the insurance industry. At the age of 63, Aday sought move to Seattle from Cincinnati and applied for jobs withing Westfield that would allow him to do so but was rejected in favor of significantly younger candidates. At that same time, Aday was subjected to two comments/jokes about his age and retiring. Aday filed an age discrimination complaint against Westfield in the United States District Court for Southern District of Ohio. In response, the employer counter sued Aday for wrongful appropriation of trade secrets because he emailed work that he was doing back and forth to his personal email address to make it easier to do at home. Believing this to be a frivolous counterclaim, Aday amended his complaint to add a claim for post-employment retaliation. (Note that post-employment retaliation claims can be based on bad references, early cutting of benefits, blocking COBRA benefits, refusing to provide required tax information, etc.)

The Court dismissed the Counterclaim as lacking merit, but also dismissed Aday’s claim for retaliation (as well as the age discrimination claim). Aday appealed to the United States Court of Appeals for the Sixth Circuit, which reversed the dismissal of the age discrimination claim but affirmed the dismissal of the post-employment retaliation claim, the latter of which is the focus of today’s blog.

Aday brought his retaliation claim under Ohio’s discrimination statute, Ohio R.C. § 4112.02, which has anti-retaliation protections that prohibit an employer from taking any adverse action against an employee for opposing, reporting, or participating in an investigation of suspected unlawful discriminatory conduct by the employer or as part of the work environment. (Best Law Read: How Do I Prove Illegal Retaliation By My Job Under Title VII?)

Ohio R.C. § 4112.02, mush like Title VII of the Civil Rights Act of 1964, applies to any discrimination or retaliation based on the race/color, religion, gender/sex (including pregnancy and LGBTQ+ status), national origin, age, and disability of the employee.

Citing to the standard set by the Ohio Supreme Court in Greer-Burger v. Temesi, 879 N.E.2d 174, 180 (Ohio 2007), the Court recognized that the necessary prima facie case of retaliation under Ohio’s age discrimination statute, Ohio R.C. § 4112.02, requires an employee to present evidence that (1) the employee engaged in a protected activity, (2) the employer was aware that the employee had engaged in such activity, (3) the employer party took an adverse action against the employee, and (4) there is a causal connection between the protected activity and adverse action. Aday at *12.

Critically, the United States Court of Appeals for the Sixth Circuit held when this standard is met as a result of employer filing a counterclaim, which obviously meets the above first three criteria:

While “an employer is not barred from filing a well-grounded, objectively based action against an employee who has engaged in a protected activity,” in some situations, the filing of counterclaims may constitute adverse employment action. [Greer-Burger] at 180 n.2; accord Rosania v. Taco Bell of Am., Inc., 303 F. Supp. 2d 878, 888 (N.D. Ohio 2004). The central question is whether the counterclaims are filed “not in good faith and instead motivated by retaliation.” Kendel v. Loc. 17-A United Food & Com. Workers, 835 F. Supp. 2d 421, 430 (N.D. Ohio 2011). Stated differently, the Court must find (1) “the employer acted with retaliatory motive” and (2) that the employer’s counterclaims “lack a reasonable basis in fact or law.” Lynch v. Studebaker, 2007-Ohio-4014, ¶ 20, cause dismissed, 2007-Ohio-5937, ¶ 20, 115 Ohio St. 3d 1480, 875 N.E.2d 964.

Aday, at *13. Personally, I believe that if properly developed and argued, that the employer’s filing of claim that lacked “a reasonable basis in fact or law,” must have been filed for some reason and the lack of any reason but retaliation should allow the jury to decide the motive.

However, in Aday, the United States Court of Appeals for the Sixth Circuit affirmed the District Court’s dismissal, holding that the employee failed on both of these elements:

The district court extensively considered the merits of Defendants’ misappropriation counterclaim and concluded that although some of the emails contained trade secrets and Plaintiff acquired such information as a result of a confidential relationship, they failed to prove Plaintiff “acquired any of the emails through improper means” because he never violated a specific Westfield policy nor proved anyone besides Plaintiff had seen the emails. (Order Granting Summ. J., R. 75, Page ID #1726.) Plaintiff does not specifically challenge any of the district court’s findings, but instead argues the counterclaims are “objectively baseless” because Defendants “could not cite to a single court decision to support” their theory that emailing work documents to one’s personal email account constitutes misappropriation of trade secrets. (Appellant’s Br. 52-53.)

A claim is not objectively baseless simply because it fails. See Schlaifer Nance & Co., Inc. v. Estate of Warhol, 194 F.3d 323, 337 (2d Cir. 1999) (holding “a claim that fails as a matter of law is not necessarily lacking any basis at all”). … Defendants successfully proved two of the three elements to prove misappropriation of trade secrets. Moreover, Defendants’ argument is not nearly as outlandish as Plaintiff tries to make it seem. Courts around the country have considered whether emails sent to oneself can constitute misappropriation. For example, in Aon PLC v. Infinite Equity, Inc., No. 19 C 7504, 2021 WL 4192072, at *14 (N.D. Ill. Sept. 15, 2021), the court found there was a reasonable likelihood of success on a misappropriation claim when an employee “forwarded emails from his Aon email address to his personal email address.” See generally Mintz v. Mark Bartelstein & Assocs. Inc., No. 2:12-CV-02554-SVW-SS, 2013 WL 12182602, at *4 (C.D. Cal. June 14, 2013); CPI Card Grp., Inc. v. Dwyer, 294 F. Supp. 3d 791, 809 (D. Minn. 2018). Having failed to prove Defendants’ counterclaims lack a reasonable basis in fact or law, for this reason alone, Plaintiff’s claim of retaliation must fail.

Plaintiff goes on, however, to argue Defendants’ conduct was motivated by retaliation. This argument fails too. Plaintiff’s only basis for inferring a retaliatory motive is that Westfield’s management knew other employees had emailed themselves work but the only other time Defendants filed a claim against an employee for such conduct was after the employee had sued Westfield. There are many reasons an employer would not litigate every infraction employees commit. However, after an employee has hauled an employer into court, it is entirely reasonable for the employer to file its claims for minor infractions. Additionally, Defendants only filed the counterclaims after Plaintiff brought the conduct to their attention. During the parties’ initial disclosures, Plaintiff mentioned he had emailed documents to his personal email account. Defendants sought leave to file the counterclaims after taking the time to audit Plaintiff’s email account. Finally, these were compulsory counterclaims that, if not filed in the present action, would be barred in future litigation. Bluegrass Hosiery, Inc. v. Speizman Indus., Inc., 214 F.3d 770, 772 (6th Cir. 2000) (“According to the Supreme Court, claims coming within the definition of compulsory counterclaim are lost if not raised at the proper time.”).

Aday at *13–14. So, there you have it.

Importantly, my best employment lawyer guess is that another employer attempting the same misappropriation claims for emails to a personal account my face more problems on a retaliation claim because now there is direct authority from the United States Court of Appeals for the Sixth Circuit stating that these claims do not qualify. Of course, the employer will point to the holding that such misappropriation claims do have some merit to avoid a retaliation claim. This will likely leave both parties at risk, which is always what makes cases ripe for a settlement.

If you are searching “I need a lawyer because I have been wrongfully fired or terminated;” or “My boss is threatening to sue me because I reported discrimination and harassment on my job based on my …” race, national origin, gender, age, religion or disability; or even think that you might need an employment lawyer, then it would be best to call the right attorney to schedule a free and confidential consultation. Call our lawyers in Cleveland, Columbus, Youngstown, Detroit, Toledo and Cincinnati to get help now. Spitz, The Employee’s Law Firm and its attorneys are experienced and dedicated to protecting employees’ rights and solving employment disputes.


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