Retaliation: Employee Who Files Discrimination Claims, is Denied Promotion & Suffers Adverse Actions has Retaliation Claims

When an employee files a good faith employment discrimination claim and then experiences adverse actions at the workplace, the employee has a claim for retaliation. For instance, in Komis v. Perez, 2014 U.S. Dist. LEXIS 82065(E. D. Pa. June 16, 2014)(Rice, M. J.), the Plaintiff, a former employee of the Occupational Safety and Health Administration (“OSHA”), filed an action for retaliation contending that she was retaliated against when OSHA management failed to hire her as an Assistant Regional Administrator and she was subjected to a retaliatory hostile work environment due to a myriad actions, resulting in her constructive discharge. The Court held that the Plaintiff employee presented sufficient evidence to present questions of material fact related to her retaliation claims and denied the employer’s motion for summary judgment, holding that the case will turn on who the jury believes in order to determine if Plaintiff was a disgruntled and poor-performing employee who failed to adjust to necessary changes; or whether she was an employee victimized by vengeful management angered by her complaints of discrimination.

In order to establish a retaliatory failure to hire claim, a Plaintiff employee must first establish a prima facie case of retaliation under Title VII to show:(1) the employee engaged in activity protected by Title VII; (2) the employer took a materially adverse employment action; and (3) there was a causal connection between participation in the protected activity and the adverse employment action. If the employee establishes a prima facie case, the burden shifts to the employer to demonstrate a legitimate, non-retaliatory reason for the adverse employment action. Then the burden shifts back to the employee to show that the employer’s explanation is false or pretextual and retaliation was the real reason for the adverse employment action.

In Komis, the employee established a prima facie case (i.e. she filed multiple good faith claims of discrimination based on a criteria protected by the law such as race, age national origin-which are not specified in the opinion). The employer claimed that the candidate hired for what would have been a promotion was superior to the Plaintiff because the employer wanted a candidate with a fresh, outside perspective to run the operations claiming there was concern that there was disagreement, hostility, and personality conflicts among the existing employees. The Plaintiff employee then asserted that the proffered reason was pretextual because she was more qualified based on the vacancy announcement, which demanded an understanding of technical safety, occupational health matters and the successful candidate only had legal experience with regard to those matters. The Court held that the Plaintiff employee presented sufficient evidence to raise a question of material fact concerning the credibility of the proffered non-retaliatory reason for not hiring the Plaintiff and viewing the evidence in the light most favorable to Plaintiff, a reasonable jury could conclude that the employer was using the unaddressed hostility within the office towards the employee who up until that time had good performance evaluations, as a pretext for excluding her from receiving the promotion because she had engaged in protected activity.

To establish a retaliatory hostile work environment/constructive discharge claim, an employee must show: (1) the employee was retaliated against because of protected activity; (2) a reasonable employee would have found the alleged retaliatory actions materially adverse; (3) the retaliatory conduct detrimentally affected the employee; (4) the conduct would have detrimentally affected a reasonable person in like circumstances; and (5) a basis for employer liability. In establishing a causal link between the alleged retaliatory conduct and protected activity, an employee can rely on a broad array of evidence, including signs of a retaliatory animus, temporal proximity between the protected activity and the alleged retaliatory action, inconsistencies in the employer’s articulated reasons for terminating the employee, and a pattern of antagonism in the intervening period. An employee must also show that the employer’s actions would have dissuaded an objectively reasonable person from making or supporting a complaint against the employer by showing more than trivial harm such as petty slights, minor annoyances, and simple lack of good manners which are not sufficient to deter a reasonable person from reporting misconduct. The significance of any given alleged act of retaliation often depends on the particular circumstances. To prove constructive discharge based on a hostile work environment, the employee must show that working conditions were so intolerable that an objectively reasonable person would have felt compelled to resign. Whether an employee was forced to resign may be based on several factors, including, whether the employee was threatened with discharge, encouraged to resign, demoted, subjected to reduced pay or benefits, involuntarily transferred to a less desirable position, subjected to altered job responsibilities, or given unsatisfactory job evaluations.

In Komis, the Court held that when the evidence of misconduct is viewed in favor of the plaintiff employee and considered cumulatively as part of a continuing course of retaliatory conduct, the following genuine disputes of material fact exist which could support a showing of causation and materially adverse actions: permanently removing the employee from certain previously assigned work, reassigning to a primarily clerical position, harsher discipline in comparison to other similarly situated employees, lower performance ratings that hindered the chances for promotion, denial of the opportunity to attend training courses, failing to properly investigate and resolve alleged misconduct against the plaintiff employee by other employees, denial of the opportunity to work from home or a different location when similar employees were permitted to do so, and management interference with assigned work. Consequently, the court denied summary judgment on the retaliatory hostile work environment /constructive discharge claim.

For more information on retaliation and Abramson Employment Law, see You can


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Filed under Constructive Discharge, Failure to Hire, Retaliation

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