Articles Posted in Retaliation

When your business offers a severance agreement to a departing employee, does it contain:

• a general release;
• a non-disparagement obligation;

Back in January 2011, when I had only one child and an Aston Martin savings fund, the U.S. Supreme Court decided Thompson v. North American Stainless, LP. In that case, the Court held that an employer violates Title VII of the Civil Rights Act if it takes action against an employee who is in the same “zone of interest” as another employee who files a Charge of Discrimination with the United States Equal Employment Opportunity Commission.

In Thompson, a company received an EEOC Charge of Discrimination and allegedly fired the employee’s fiancé in response. The Supreme Court held that, if true, this set of fact would amount to retaliation.

Now, fast forward to 2014. I have four children, I’m two Happy Meals away from declaring bankruptcy, and, last night, I dined on the leftover ketchup packets.

If I ever handled a plaintiff’s case again, at deposition, I would be sure to take a page out of the playbook of Texas employment lawyer, Mike Maslanka:

Ask the manager who decided to fire the plaintiff whether he’s eligible for re-hire. An unprepared manager might blurt out, “Of course not; he’s suing us.” Say hello to a retaliation claim.

I thought of Mike as I read this recent Texas Court of Appeals case about an employer that admitted at trial that, its receipt of EEOC right to sue letters “prompted” it to place the following notes on the Charging Parties’ personnel files:

J. Neil DeMasters worked as an EAP counselor for Carilion Clinic. During the course of his employment, a co-worker came to him complaining to have been a victim of sexual harassment. Mr. DeMasters relayed his co-worker’s complaint to HR. Then he was fired.

Does Mr. DeMasters have a possible retaliation claim? Nope.

DeMasters’ statements to Carilion’s human relations department qualify as protected oppositional conduct. There are no allegations in this case that DeMasters played any role in Doe’s sexual harassment complaint beyond counseling Doe through the EAP and relaying Doe’s complaint to Carilion’s human relations department. Merely ferrying Doe’s allegations to Carilion’s human relations department is in no sense oppositional, and DeMasters did not engage in protected activity in so doing…. DeMasters intended only to relay Doe’s complaints to Carilion, not voice his own opposition to any unlawful employment practice, such as the sexual harassment or hostile work environment alleged by Doe.