Retaliation: Employee Terminated Shortly After Assisting Another Employee with a Sexual Harassment Claim and Taking FMLA Leave has Viable Claims of Retaliation

Employment laws provide protection for employees who are terminated shortly after engaging in “protected activity.” Santiago v. Citywide Community Counseling , Services, Inc., 2013 U.S. Dist. LEXIS 113087 (August 12, 2013)(Kelly, J.), demonstrates that an employee who is terminated after assisting another employee with a sexual harassment case and taking leave protected by the FMLA may have viable retaliation claims against a former employer. In Santiago, the Plaintiff, who worked as a Building Manager for over 5 years, recommended that her employer hire a friend of Plaintiff’s daughter. Several months after being hired, the friend complained of being sexually harassed by a male therapist. Plaintiff advised the friend to file a formal complaint with management and Plaintiff called her supervisor to inform her about the sexual harassment complaint. Defendant’s owner then called Plaintiff on the phone and told her that he did not want the complaint to “get out” because it “could hurt the clinic.” The friend was terminated shortly thereafter due to purported attendance issues and filed a lawsuit against Defendant claiming sexual harassment and retaliatory discharge. Thereafter, Defendant’s owner repeatedly complained to Plaintiff and blamed Plaintiff for the lawsuit.

In Santiago the Plaintiff also had to take a leave from work for unrelated matters and utilized FMLA leave. Upon return from FMLA leave Plaintiff was asked if she would take a voluntary demotion to work part-time work and then within 24 days of returning from FMLA leave the Defendant employer terminated Plaintiff’s employment allegedly for “financial reasons.” Plaintiff claimed that her termination was retaliation for her involvement in the sexual harassment complaint filed by the friend and Plaintiff’s use of FMLA protected leave.

In Santiago, the Court found that the Plaintiff had two viable claims of retaliation. First as to assisting the friend for retaliation, this activity is protected by Title VII which requires Plaintiff to show: (1) she engaged in activity protected by Title VII; (2) the employer took an adverse employment action against her; and, (3) there was a causal connection between her participation in the protected activity and the adverse employment action. The court found that Plaintiff sufficiently plead a retaliation claim when she engaged in an activity protected by Title VII by providing assistance to the friend in the filing of the sexual harassment claim in after which the owner of Defendant, expressed concern to Plaintiff that it “could hurt the clinic” and then the owner repeatedly complained to Plaintiff and blamed her for the lawsuit. The Court found that the Plaintiff’s assistance to the friend who reported an incident of sexual harassment and her connections to the person complaining about sexual harassment constitute protected activity. The Court also ruled that Plaintiff could proceed with her FMLA retaliation claim because by pressuring Plaintiff to take a demotion and shortly thereafter terminating her employment, Plaintiff adequately set forth facts supporting a claim for relief under the FMLA because she was eligible for FMLA leave; provided adequate notice to Defendant of her intent to take FMLA leave; took qualifying FMLA leave; was asked to take a demotion; and then fired 24 days after her return from FMLA leave.

For more information on retaliation see You can also learn more about your rights under the FMLA at


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Filed under Employment Law, FMLA, Retaliation

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