Retaliation: Seasonal Employee Who Files Complaint Alleging Discrimination and is Not Rehired Has Retaliation Claim

We continue to find more cases where courts deny Motions for Summary, finding that factual disputes arise which may allow a jury to conclude that employers retaliate against an employees who filed a discrimination complaint even where discrimination cannot be found.

In Johnson v. Hershey Creamery Co., 2013 U.S. Dist. LEXIS 32025 (M. D. Pa. March 8, 2013)(Kane, J.), the Plaintiff, a 50-year-old African-American male was employed as a part-time seasonal employee. As part of the annual seasonal layoff, on two successive years the Plaintiff was laid off. Both Plaintiff and a 30-year-old Caucasian were laid off the second year. Following the seasonal layoff, a full-employee quit and the Defendant subsequently hired the 30-year-old, rather than the Plaintiff, to fill the full-time position. After Plaintiff became aware he was not hired because “the guys in the department wanted Chad there”, Plaintiff filed an administrative complaint against Defendant alleging that he was discriminated against on the basis of his race and his age when he was not selected for the full-time position. Shortly thereafter, the Plaintiff called his manager to inquire whether he would be hired as a summer seasonal employee for the next summer season and the manager said he would likely not be hired because Plaintiff had filed an administrative complaint against the employer.

In Johnson, the Court found the Plaintiff had a prima facie case of retaliation as he filed an administrative complaint, which is protected activity; and because Plaintiff’s manager informed Plaintiff that he would not be rehired because he filed an administrative complaint against Defendant, there is an “adverse employment action,” as a reasonable employee may be dissuaded from making or supporting complaints in the future if an employer expressly tells an employee he would not be rehired for seasonal employment because of a pending administrative complaint. Since the Defendant conceded that the supervisor told Plaintiff that he would not be rehired because of the pending complaint, and did not produce any non-retaliatory reason supporting that decision, the Court denied Defendant’s Motion for Summary Judgment on the retaliation claim which will proceed to trial.

For more information on retaliation and Abramson Employment Law see


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Filed under Age Discrimination, Employment Law, Race Discrimination, Retaliation

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