When an employee reports employment discrimination or disability discrimination, retaliation is often the fear lurking in the background. If the employer later fires that worker, many assume the employee was wrongfully fired. But under employment law, suspicious timing alone does not automatically prove retaliation or wrongful termination.
Many employees who believe they were wrongfully fired after reporting discrimination assume the law will automatically protect them, but retaliation claims require proof of why the employer acted.
That lesson appears clearly in Kluender v. United States Liability Insurance Co., Inc., No. 25-1750, 2026 U.S. App. LEXIS 6971 United States Court of Appeals for the Third Circuit Mar. 10, 2026.
J’Amy Kluender worked as a claims examiner for United States Liability Insurance Corporation. In 2018 she was diagnosed with thyroid cancer and later took medical leave. After returning to work, the employee requested accommodations related to her condition. Eventually the relationship between the employee and the employer deteriorated, and Kluender filed a lawsuit alleging disability discrimination and retaliation.
During a deposition in that lawsuit, Kluender disclosed that while working for the company she had been paid by medical providers to provide affidavits and expert testimony about insurance claims practices. Six days later, the employer terminated her employment, citing a conflict-of-interest policy.
Kluender believed the employer retaliated against her for participating in the deposition—conduct she viewed as clearly protected under employment law. The company insisted it fired the employee for violating company policy.
The United States Court of Appeals for the Third Circuit ultimately sided with the employer, and the decision offers an important lesson for employees who believe they were wrongfully fired after engaging in protected activity. The law protects workers who exercise their rights, but it does not give an employee blanket immunity simply because questionable conduct surfaces while exercising those rights.
Key Legal Takeaway
In simple terms, an employee who reports discrimination, requests disability accommodations, or takes protected medical leave is engaging in protected activity, and an employer may not retaliate against the employee for doing so.
What Is Protected Activity In An Employment Law Retaliation Case?
Every retaliation claim in employment law begins with a threshold issue: whether the employee engaged in protected activity.
Protected activity refers to conduct the law shields from punishment by an employer. Reporting discrimination, raising concerns about disability discrimination, requesting accommodations, or participating in legal proceedings are typical examples of protected activity under federal employment laws.
Federal statutes make those protections explicit. The Americans with Disabilities Act (“ADA”) prohibits an employer from retaliating against an employee for asserting rights under the statute, including requesting accommodations or opposing disability discrimination. See 42 U.S.C. § 12203. Similarly, the Family and Medical Leave Act (“FMLA”) forbids an employer from interfering with or retaliating against an employee for exercising protected medical-leave rights. See 29 U.S.C. § 2615.
Congress created these protections for a practical reason. If an employee risked losing their job every time they challenged discrimination or took medical leave, very few workers would ever assert their rights.
Those statutes were directly relevant in this dispute. Kluender had taken medical leave related to cancer treatment and later requested accommodations. She then filed a lawsuit alleging disability discrimination and retaliation. The question before the Third Circuit Court of Appeals was not whether those actions were protected—they were—but whether the employer terminated the employee because of that protected activity.
Practical Tip: Employees who report discrimination or request medical accommodations should document when those events occur. A clear timeline can help an employment lawyer determine whether an employer later retaliated.
Best Workplace Retaliation Lawyer Blogs on Point:
Can An Employee Be Fired After Participating In A Lawsuit Against An Employer?
Participation in a lawsuit against an employer often qualifies as protected activity under employment law. That protection, however, does not transform the employee into someone who can never be disciplined.
The facts of this case illustrate why.
While her disability discrimination lawsuit was pending, Kluender testified at a deposition. During that testimony, she revealed she had been paid by medical providers to serve as an expert witness in litigation involving insurance claims practices.
Company leadership viewed that information differently than the employee did. Executive Vice President James Scalise concluded the outside work violated the company’s conflict-of-interest policy. Six days after the deposition, the employer terminated Kluender.
The Third Circuit Court of Appeals noted that the deposition was “the first time anyone at USLI learned that Kluender: (1) had been paid for work as an expert or consultant on claims handling while working at USLI, (2) referenced USLI in the course of some of that work, and (3) did not consult with anyone at USLI before doing so.” Kluender, 2026 U.S. App. LEXIS 6971, at *8–9.
That distinction mattered.
From the employee’s perspective, the employer retaliated because she participated in a deposition connected to her discrimination lawsuit. The company argued something different—that it acted only after discovering conduct it believed violated company policy.
Protected activity does not erase unrelated misconduct.
Imagine an employee reporting that a coworker used racist language. The complaint is protected activity. But if the same employee admits during that conversation that they stole money from the register last week, the employer does not have to ignore the theft simply because the admission occurred while reporting discrimination.
The law protects the complaint of discrimination. It does not protect the theft.
Practical Tip: When participating in litigation against an employer, remember that testimony can reveal other workplace issues. Those disclosures can still carry consequences.
Best Wrongful Termination Attorney Blogs on Point:
How Can An Employee Prove A Termination Was Retaliation?
Many employees assume retaliation will be obvious. Report discrimination, lose your job, and the employer must have retaliated.
Courts require more.
Once a retaliation claim proceeds, the employer has an opportunity to explain the termination. The Third Circuit Court of Appeals held that the employer must produce “evidence that present[s] a legitimate, non-retaliatory reason for having taken the adverse action.” Kluender, 2026 U.S. App. LEXIS 6971, at *6–7.
At that point the burden shifts back to the employee. To survive summary judgment, the worker must show the explanation does not hold up. The Third Circuit Court of Appeals held that the employee must “demonstrate weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions from which a reasonable juror could conclude that the Defendant[‘s] explanation is unworthy of credence.” Id. at *8.
This step—often described as proving pretext—is where retaliation claims succeed or fail.
In retaliation cases, courts are not deciding whether the employer made the best decision—they are deciding whether the employer acted for an illegal reason.
Kluender argued the employer retaliated because she testified in a deposition tied to her disability discrimination claim. The short gap between the deposition and termination raised suspicion.
The Third Circuit Court of Appeals concluded, however, that the employee failed to show the company’s explanation was false. According to the record, the termination followed the discovery of outside consulting work that had not been disclosed.
Without evidence undermining that explanation, the retaliation claim could not proceed.
Practical Tip: If you believe an employer retaliated, focus carefully on the reason given for the termination. A knowledgeable employment attorney can evaluate whether that explanation may conceal retaliation or wrongful termination.
Best Employment Discrimination Law Firm Blogs on Point:
Why Isn’t Timing Alone Enough To Prove Retaliation?
When an employee is wrongfully fired after reporting discrimination, the timing of the termination often becomes the first clue that retaliation may have occurred.
Timing frequently raises suspicion in employment law disputes. When an employee reports discrimination and shortly afterward loses their job, the sequence can look like retaliation.
Courts look deeper.
The Third Circuit Court of Appeals emphasized that although the termination followed the deposition, the employer had known about the lawsuit for months. What changed was the information revealed during the testimony.
That deposition was “the first time anyone at USLI learned” about the outside consulting work. Kluender, 2026 U.S. App. LEXIS 6971, at *8–9.
Because the employer learned new information at that moment, timing alone did not prove retaliation.
Still, timing should not be dismissed. In many cases, suspicious timing becomes powerful evidence when combined with other facts. In the hands of an experienced employment lawyer, a clear timeline can expose weaknesses in an employer’s explanation, defeat summary judgment, or create leverage for settlement.
Courts may require more than timing alone, but timing often helps reveal whether an employer acted because of protected activity.
Practical Tip: If you believe you were wrongfully fired after reporting discrimination or disability discrimination, consult an employment attorney who can analyze the timeline and the employer’s explanation.
Best Employee’s Rights Attorney Blogs on Point:
How Can An Employment Attorney Help If I Was Wrongfully Fired?
If you believe you were wrongfully fired, you may wonder whether a lawyer can actually help or whether the employer can simply get away with it.
Cases involving retaliation, discrimination, disability discrimination, and wrongful termination are rarely straightforward. An employee may feel certain that something unlawful occurred, but turning that instinct into a successful claim requires strategy and evidence.
Spitz, The Employee’s Law Firm is one of the largest firms in the United States dedicated exclusively to representing employees in employment law matters. Our attorneys regularly handle cases involving retaliation, discrimination, disability discrimination, and wrongful termination.
We offer free consultations and a no-fee guarantee, meaning you do not pay attorneys’ fees unless we recover for you. If your employer fired you after you reported discrimination, requested accommodations, or exercised protected rights, our lawyers can evaluate your situation and help determine your next steps.
Frequently Asked Questions About Protected Activity and Retaliation
What is protected activity under employment law?
Protected activity includes reporting discrimination, opposing disability discrimination, requesting accommodations, or taking protected leave under federal employment statutes.
Can an employee be fired after protected activity?
Yes. An employer may still terminate an employee for legitimate reasons unrelated to the protected activity.
How can an employee prove retaliation?
An employee must show the employer’s explanation for the termination is not credible and that retaliation was the real reason for the adverse action.
Does timing alone prove wrongful termination?
No. Suspicious timing can support a retaliation claim, but courts usually require additional evidence showing the employer acted because of protected activity.
Employment Lawyer Disclaimer
This employment law blog provides general information about employment law, including issues involving retaliation, discrimination, disability discrimination, and wrongful termination. It is not legal advice and should not replace speaking with a qualified employment lawyer about your specific situation. Reading this blog does not create an attorney-client relationship with Spitz, The Employee’s Law Firm or its attorneys. Every case between an employee and an employer depends on its specific facts, and no promises or guarantees are being made about results. This blog is a legal advertisement intended to educate employees who believe they were retaliated against or wrongfully fired after engaging in protected activity.