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Retaliation: A Potent Claim in Discrimination Litigation

By Jeffrey S. Klein, Nicholas Pappas and Brian W. Kemper

In response to the Supreme Court’s sexual harassment rulings last term,1 employers have been re-examining their policies, procedures, and training designed to prevent and respond to discrimination claims.  However, there has been less attention directed towards the prevention of what may be the even more pernicious and potentially costly claims spawned by an employer’s improper response to allegations of discrimination — retaliation claims.  A retaliation claim alleges that the employer intentionally took adverse personnel action in retaliation for an employee’s opposition to discrimination or participation in a discrimination proceeding.  If proven, such claims often carry the risk of punitive damages.

In recent years, the number of retaliation claims being asserted has skyrocketed.  Since 1992, the number of retaliation charges filed with the Equal Employment Opportunity Commission under federal anti-discrimination statutes has increased more than 72% to over 19,000 in fiscal year 1998.2#  Last year federal and state courts in New York similarly reported 115 cases that included a claim of retaliation.#3  

The specter of retaliation claims is compounded by what now seems to be a consensus among the courts and the EEOC that employees may state claims for retaliation even if they cannot prove their claim for discrimination.  Rather, courts have stated that, in order to establish a retaliation claim, an employee must demonstrate a good faith, reasonable belief that the underlying challenged actions of the employer violated the law.4#  Accordingly, in order to avoid claims of retaliation, employers must take special precautions when seeking to discipline or discharge employees who have brought discrimination claims, even where those claims are meritless.

The Second Circuit’s decision last November in Quinn v.  Green Tree Credit Corporation, 159 F. 3d 759 (2d Cir. 1998), exemplifies the difficulties that employers face in disciplining or discharging employees who have filed meritless discrimination claims.  In Quinn, a pro se plaintiff filed a meritless claim alleging hostile work environment sexual harassment that failed to meet the threshold requirement of severity and pervasiveness.5# Although the plaintiff failed to establish liability for sexual harassment, she succeeded in convincing the court of appeals that her retaliation claim was not properly dismissed, and that she was entitled to a jury trial as to whether she was discharged in retaliation for making her meritless claim.  The Quinn decision illustrates why it is necessary to take great care in disciplining or discharging employees who have asserted rights under the anti-discrimination laws.

Quinn Decision
From October 1983 to January 1992, the plaintiff, Stephanie Quinn, worked as a Loan Processor in the Syracuse office of the Defendant Green Tree, a company which provided loans to mobile home dealers.  Paul Fahey, who in turn was supervised by Charles Harwood, the office’s regional manager, supervised the plaintiff.

The plaintiff alleged that she had been subjected to more than thirty separate incidents of sexual harassment by her superiors, Fahey and Harwood, her co-workers and Green Tree clients.  The alleged acts consisted principally of offensive comments referring to the plaintiff’s sexual prowess, her body or to her and her husband’s perceived sexual orientation.  Quinn also complained about the display of pornography, the pantomiming of sexual acts, and one instance of Fahey brushing against her breasts with papers he was carrying.

In July and September 1991, the plaintiff called the New York Division of Human Rights (“DHR”) to inquire about possible discrimination at Green Tree.  Later, on November 21, 1991, plaintiff sent a letter to Green Tree’s main office describing the harassment.  Based upon an investigation in the Syracuse office conducted by Harwood, Green Tree responded to the plaintiff’s letter stating that there was no support for her accusations.  As a result, on December 27, 1991, the plaintiff filed a charge with the DHR alleging sexual harassment and a hostile work environment.  Ten days later, on January 6, 1992, Green Tree fired the plaintiff, citing complaints from Green Tree clients and other Green Tree employees regarding the plaintiff’s poor attitude and interpersonal skills.  After her discharge, the plaintiff filed an additional charge with the DHR, alleging that the discharge by Green Tree was retaliatory.

While employed at Green Tree, the plaintiff received annual evaluations, of which all but one rated her performance as satisfactory.  The one exception, her last review dated November 29, 1991, noted that the plaintiff needed to improve her interpersonal skills and relationship with her fellow employees.  However, prior reports had noted that the plaintiff had a good relationship with dealers and customers and demonstrated a good work attitude.  In addition, the plaintiff received a six percent pay increase following the November 29, 1991 evaluation.

District Court Decision
The plaintiff filed suit in December 1993 in the United States District Court for the Northern District of New York.  The complaint contained a discrimination charge under Title VII and the New York Human Rights Law#,6 and a wrongful, retaliatory discharge in violation of VII and New York Human Rights Law.  After the completion of discovery, Green Tree filed a motion for summary judgment denying all of the plaintiff’s allegations of sexual harassment, and asserting that plaintiff’s discharge was based on her poor attitude and interpersonal skills.

In June 1997, the district court granted Green Tree’s motion for summary judgment.  It dismissed the plaintiff’s harassment claim, ruling that many of the incidents alleged by the plaintiff were time-barred under Title VII’s applicable three-hundred day limitation period and that the plaintiff had failed to prove that these incidents were part of a “continuing violation” which would toll the limitations period.  The court further ruled that the alleged conduct that had occurred within the limitations period did not rise to the level of an actionable hostile work environment.  As to the retaliatory discharge claim, the district court ruled that the plaintiff had failed to rebut Green Tree’s evidence that her discharge was done for a legitimate, non-retaliatory purpose.  

Second Circuit Decision
The Second Circuit agreed with the district court concerning the dismissal of the harassment claim.  The Court held that there was no evidence that the employer failed to provide Quinn a reasonable procedure in which to complain of harassment by co-workers and customers or that it knew of her harassment but failed to take any action.  In addition, only two incidents of harassment by her supervisors were found to be timely:  1) that Quinn’s supervisor, Fahey, told her that she had been voted the “sleekest ass” in the office and 2) that Fahey deliberately touched her breasts with some papers that he was holding in his hand.  Although the Court recognized that these acts were “obviously offensive and inappropriate,” the Court held that they were “sufficiently isolated and discrete that a trier of fact could not reasonably conclude that they pervaded Quin’s work environment.”  The Court further stated that they were not sufficiently severe to alter the conditions of Quinn’s employment without regard to their frequency or regularity.

However, the Second Circuit vacated the district court’s judgment dismissing the plaintiff’s retaliatory discharge claim, ruling the plaintiff had supplied sufficient evidence to convince a jury that the company’s proffered reason for the plaintiff’s discharge was pretextual.

The Court noted that retaliationclaims under Title VII are tested under a three-step burden shifting analysis.  First, the plaintiff must make out a prima facie case of retaliation.  Second, the defendant then has the burden of articulating a legitimate, non-retaliatory reason for the complained of action, in this case a discharge.  Third, if the defendant meets its burden, the plaintiff must adduce evidence “sufficient to raise a fact issue as to whether [the employer]’s reason was merely a pretext”7 for retaliation.

In order to establish a prima facie case of retaliation, a plaintiff must show (1) participation in a protected activity known to the defendant, (2) an employment action disadvantaging the plaintiff, and (3) a causal connection between the protected activity and the adverse employment action.

The Second Circuit found that the plaintiff had established that she was participating in a protected activity, the filing of a complaint with the DHR.  The Court noted that in order for the plaintiff to prove that the filing was a protected activity, she need not successfully allege in her complaint conduct amounting to a violation of Title VII.  Rather, a plaintiff need demonstrate only that she had a “good faith, reasonable belief that the underlying challenged actions of the employer violated the law.”   “Thus, it is possible for an employee to reasonably believe that the specified conduct amounts to harassment, even when that conduct would not qualify as harassment under the law.”#8

In this case, the Court found that the evidence showed that the plaintiff had a good faith belief in her claim.  First, the plaintiff had consulted with a DHR representative in July 1991 and was informed of the law of hostile work environment sexual harassment.  Further, the plaintiff sent the defendant a letter complaining of the harassment and informing them that she intended to file a complaint with the DHR on December 23, 1991.  The plaintiff did in fact file such a complaint on December 27, 1991.  Thus, the Court held that the plaintiff had presented enough evidence to sustain a good faith, reasonable belief that Green Tree was in violation of the law.

The Second Circuit also concluded that the plaintiff had satisfied the second and third prongs of presenting a  prima facie case.  The Court held that her discharge clearly amounted to an employment action disadvantaging her.  Further, since her discharge came less than two months after she had filed a complaint with Green Tree and ten days after she filed a complaint with the DHR, the third prong, a “causal connection between the protected activity and the adverse employment action”#9, had been satisfied.  Thus, the Second Circuit ruled that the plaintiff had proved sufficient evidence establishing a prima facie case of retaliation.

Once the plaintiff had established a prima facie case, the burden then shifted to the employer to prove that it had a legitimate, non-retaliatory reason to discharge the plaintiff.  The Second Circuit determined that Green Tree had satisfied its burden by the following evidence:  a memo to the file, drafted by Harwood in September 1991, which provided complaints from the plaintiff’s coworkers and clients regarding her rudeness; the November 1991 evaluation; and an affidavit of a Green Tree client attesting to the plaintiff’s poor attitude.

After a defendant has established a legitimate, non-retaliatory reason for discharging the plaintiff, the plaintiff must rebut the defendant’s response and prove that the defendant’s reason for termination was merely pretext for retaliation.  It is at this level that the Second Circuit reversed the district court.  The District Court had ruled that the plaintiff had failed to rebut Green Tree’s response by showing evidence of pretext.  However, the Second Circuit disagreed, holding that the plaintiff had presented sufficient evidence to require a trial.  

The Second Circuit pointed out that the plaintiff had presented evidence that suggested “a strong temporal correlation between complaints to the Company and the DHR on one hand, and her termination, on the other.”#10  Specifically, the Court noted that nearly all of Green Tree’s record evidence supporting its asserted non-retaliatory reason for the plaintiff’s discharge (including the November 1991 evaluation and the September 1991 file memo), was generated by her supervisors Fahey and Harwood — two of her alleged harassers.  Further, the record evidence generated by these two followed her initial inquiry with the DHR regarding harassment and discrimination at Green Tree.  Thus, the Court held that the plaintiff had presented evidence sufficient for a trier of fact to conclude that Green Tree’s reasons for the plaintiff’s dismissal were pretextual. The appellate court vacated the district court’s dismissal of the plaintiff’s retaliation claim, and remanded the case to the district court.

The Second Circuit’s decision is Quinn v. Green Tree illustrates that a plaintiff’s failure to support a claim for discrimination under Title VII does not mean that a claim for retaliatory discharge is likewise groundless.  To avoid the circumstantial showing of retaliation in Quinn, employers may seek to document any planned discipline or discharge of an employee who has complained about discrimination by sources other than those accused by the plaintiff of discrimination.  Furthermore, employers may place themselves in a stronger position to defeat the plaintiff’s allegation of pretext if they can document the plaintiff’s performance deficiencies over a period of time extending well prior to the alleged protected activity.  

1. Burlington Industries, Inc. v. Ellerth, 118  S.Ct. 2257 (1998); Faragher v. City of Boca Raton, 118 S.Ct. 2275 (1998).
#2. The EEOC has reported that the number of retaliation charges filed with the agency increased from 11,096 in fiscal year 1992 to 19,114 in fiscal year 1998 (Charge Statistics from the U.S. Equal Employment Opportunity Commission (available on the Internet at The bulk of the growth in charges has occurred under Title VII which accounted for 10,499 charges in 1992 and 16,394 in 1998 (Id.).  Complainants filed these charges under the following statutory anti-retaliation provisions which are enforced by the EEOC.  See, Title VII of the Civil Rights Act of 1964, Section 704(a) of Title VII, 42 U.S.C. § 2000e-3(a), the Age Discrimination in Employment Act, Section 4(d) of the ADEA, 29 U.S.C. § 623(d), the Equal Pay Act, Section 15(a)(3) of the Fair Labor Standards Act, 29 U.S.C. § 215(a)(3), and the Americans with Disabilities Act, Section 503(a) of the ADA, 42 U.S.C. § 12203(a).

3. See, e.g., Gierlinger v. Gleason, 140 F. 3d 858 (2nd Cir. 1998), Smith v. Garretto, 147 F 3d 91 (2nd Cir. 1998), Greenbaum v. Handlesbanken, 26 F. Supp. 2d 649 (S.D.N.Y. 1998),  Copeland v. Sears, Roebuck & Co., 25 F. Supp. 2d. 412 (S.D.N.Y. 1998), Szarkav. Reynolds Metals, 17 F. Supp. 2d 115 (N.D.N.Y. 1998), Mahotep v. Deluca, 3 F. Supp. 2d 385 (W.D.N.Y. 1998), Kelly v. Xerox Corp., 681 N.Y.S. 2d 322 (2nd Dept. 1998), Larson v. Albany Medical Center, 676 N.Y.S. 2d 293 (3rd Dept. 1998), Lemberg v. John Blair Communications, Inc., 674 N.Y.S. 2d 355 (1st Dept. 1998).
4. EEOC Compliance Manual, Section 8: Retaliation, at 8-8, Transmittal Number 915-003, Dated May 20, 1998.
5. See Klein and Pappas, “Sexual Harassment:  Analyzing Severity and Persuasiveness”, March 7, 1997, NYLJ at p. 3.
6. N.Y. Exec. Law § 296.
7. 139 F.3d at 769.
8. Id.
#9. Id. (quoting Tomka v. Seiler Corp., 66 F. 3d 1295, 1308 (2d Cir. 1995)).
#10. Quinn at 770.