Could an anonymous complaint about COVID-19 spawn a sex-based retaliation claim?

Winning a retaliation lawsuit against an employer isn’t easy.

The plaintiff-employee must prove three elements:

1. she engaged in a protected activity;
2. the defendant-employer took an employment action adverse to the plaintiff; and
3. there was a causal connection between the protected activity and the adverse employment action.

A journalist at a Midwest television station sued her employer for retaliation after the station fired her last year. The station claimed that it fired her for certain unexcused absences from work. The journalist alleged that the trigger was her anonymous ethics complaint about potential exposure to COVID-19 in the workplace.

Huh?

Perhaps, like me, you’re thinking to yourself, “Doesn’t a protected activity usually involve a complaint about discrimination?”

Or, maybe, you’re like, “How does someone prove that their employer fired them for complaining anonymously?”

Let’s order you a black robe and a gavel because you’re on to something.

The federal judge deciding the case was on our wavelength too:

[Plaintiff] filed an anonymous ethics complaint regarding [a manager’s] statements to her and regarding [Defendant]’s expectation that she return to the office in spite of the risk that she might be exposed to COVID-19. None of her allegations in that complaint, or in her follow-up communications … suggested a violation of the [anti-discrimination law]. None of them alleged discrimination or harassment on the basis of sex or any other protected characteristic.

Although the plaintiff further asserted that she complained that “men were allowed to defy COVID-19 protocols with impunity,” she did not argue that the company treated women any differently.

Plus, the plaintiff complained anonymously, and the record established that the decisionmaker who fired her did not learn her identity as a complainant until after the termination. There can be no nexus between an adverse employment action and an earlier complaint if the decisionmaker is unaware of the latter.

There’s the type of retaliation that violates the law. There’s garden-variety retaliation, which isn’t legally actionable.

And then there’s this: employee gets fired for violating work rules which has nothing to do with any previous complaint she may have lodged.