PREVENTING RETALIATION CLAIMS

I. What Is Retaliation?

Retaliation is another form of discrimination. The Civil Rights Act of 1964 (“Title VII”) makes it unlawful for an employer to discriminate against an employee “because he has opposed any practice made an unlawful employment practice” by Title VII or “has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing” under Title VII. 42 U.S.C. § 2000e-3.

II. Who May Sue for Retaliation?

Current employees may bring retaliation claims.

In addition, former employees may bring claims for retaliation. The United States Supreme Court has extended Title VII’s definition of “employee” to cover former employees in cases where the employer is alleged to have retaliated giving false, adverse job references. Robinson v. Shell Oil Co., 519 U.S. 337, 345-346 (1997). “Examples of post-employment retaliation include actions that are designed to interfere with the individual’s prospects for employment, such as giving an unjustified negative job reference, refusing to provide a reference, and informing an individual’s prospective employer about the individual’s protected activity.” EEOC Compliance Manual (Volume 2, Section 8-11, D.2). The following actions against former employees have been held to be retaliatory.

• Sales employee, who has complained of sexual harassment, quits and joins a competitor. Employer brings a frivolous lawsuit for damages and an injunction against former employee to restrain his competing sales efforts.

• Unsolicited calls to prospective employers attempting to “blackball” former employee who had filed a claim for overtime with the Department of Labor.

• Employer’s refusal to pay former employee for accrued leave, where former employee was assisting union efforts to organize employer’s work force.

• Raising a frivolous defense to former employee’s unemployment compensation claim, after former employee had filed a charge of discrimination.

Title VII also prohibits retaliation against individuals who opposed discriminatory practices, even if the target of such opposition was another employer. For example, a violation of the statute will be found if an employer refuses to hire an applicant because the individual opposed his/her previous employer’s allegedly discriminatory practices. See Mc Menrmy v. City of Rochester, 241 F.3d 220 (2^nd Cir. 2001).

Employers are well advised to treat with caution any reference checks on former employees who have engaged in protected activity. Advising a prospective employer that the applicant had filed a discrimination charge is an almost certain route to liability on a retaliation claim. Although not a guaranty of claims avoidance, usually the best course is to follow a policy of giving only dates of employment and position held. The best advice, for treatment of a former employee who engaged in protected activity before his/her termination, is to avoid actions which, arguably, could be viewed as retaliatory.

III. What Legal Bases Are There for Retaliation Claims?

Virtually every state and federal statute that protects an employee from discrimination or grants an employee a workplace right contains an anti-retaliation provision. Here are some examples:

• Title VII
• New Mexico Human Rights Act
• Occupational Safety and Health Act
• Family and Medical Leave Act
• Equal Pay Act
• Americans with Disabilities Act
• Age Discrimination in Employment Act
• National Labor Relations Act

Terminated employees may also pursue common law claims of retaliatory discharge. Under New Mexico case law, it is unlawful for an employer to discharge an employee for engaging in an act encouraged by public policy or for refusing to engage in an act prohibited by public policy. This tort includes not only “whistleblower” situations, but also cases where the plaintiff has complained of discrimination.

IV. The Prima Facie Case.

To establish a prima facie case of retaliation, a plaintiff must demonstrate the following:

• He engaged in some protected activity.
• The employer took an adverse employment action against her.
• There is a causal connection between the protected activity and the adverse employment action.

If a plaintiff can make out a prima facie case of retaliation, the court then evaluates the plaintiff’s claims according to the burden-shifting analysis articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05 (1973). See McGarry v. Board of County Comm’rs of the County of Pitkin, 175 F.3d 1193, 1201 (10th Cir.1999). Under the McDonnell Douglas burden-shifting analysis, the plaintiff bears the initial burden of establishing a prima facie case of discrimination. If the employer is then able to articulate a legitimate nondiscriminatory reason for the adverse action, the plaintiff must then show that the articulated reason is a pretext for retaliation.

V. What Is Protected Activity?

Protected activity is construed broadly. Generally, it includes any opposition to an illegalpractice or participation in any proceeding opposing a discriminatory practice.

The Opposition Clause

Recently, in Clark County School Dist. v. Breeden, 532 U.S. 268 (2001), the Supreme Court addressed the requirements for a Title VII retaliation claim. In that case, the plaintiff made a charge of sexual harassment based on an isolated incident that was clearly not actionable. (The plaintiff read a report about a worker you had once commented to another work, “I hear making love to you is like making love to the Grand Canyon.” Plaintiff’s supervisor asked plaintiff’s co-worker, “I don’t understand what that means,” and the co-worker chuckled and said, “I’ll tell you later.”) The plaintiff also brought a retaliation claim, alleging she was transferred in retaliation for having made the sexual harassment charge. The facts shows that the EEOC had issued a right-to-sue letter to the plaintiff three months before her employer announced she was contemplating the transfer, and the actual transfer occurred one month after her employer learned of her suit.

The Supreme Court found the latter fact immaterial in light of the fact that the employer concededly was contemplating the transfer before it learned of the suit: “Employers need not suspend previously planned transfers upon discovering that a Title VII suit has been filed, and their proceeding along lines previously contemplated, though not yet definitively determined, is no evidence whatever of causality.” Id. at 273. The Supreme Court also held that obtaining a “right-to-sue” letter, in itself, is not a protected activity, such an argument being “utterly implausible.” Id.; see also Marquez v. Baker Process, Inc., 42 Fed. Appx. 272 (10^th Cir. 2002) (unpublished decision). Finally, the Supreme Court held that to provide a basis for a sexual harassment retaliation claim, the complaint must have been about conduct that a reasonable person could have found violated Title VII, that is, conduct that could reasonably be found to be so severe or pervasive as to alter a term or condition of employment. Id.; see also Curd v. Hank’s Discount Fine Furniture, Inc., 272 F.3d 1039 (8^th Cir. 2001) (e-mail in which she complained to a supervisor of a salesman standing on the showroom floor with his pants open tucking in his shirt was not protected activity for purpose of her Title VII retaliatory discharge claim); Baker v. John Morrell & Co., ___ F. Supp.2d ___, 2003 WL 1222297 (N.D. Iowa, Mar 17, 2003) (“A plaintiff’s proof of retaliation must be established such that a reasonable person could believe that the alleged unlawful incident would violate Title VII’s standard.”); Spadola v. New York City Transit Authority, 242 F. Supp.2d 284 (S.D. N.Y. 2003)(male employee of city transit authority who claimed that he was the victim of retaliation in violation of Title VII for his threat to file sexual harassment charge against female supervisor during altercation and his actual filing of such a charge with EEOC failed to establish that he was engaging in protected activity at time he made threat to supervisor; employee’s own testimony belied that at time incident occurred he actually believed he had been a victim of sexual harassment, and demonstrated instead that he viewed sexual harassment allegation as his own form of intimidation and retaliatory tactic designed to deter supervisor from instituting disciplinary charges to punish his behavior); but see Petersen v. Utah Dep’t of Corrections, 301 F.3d 1182 (10th Cir.2002) (to state a prima facie case of retaliation, plaintiff must show, inter alia, that he had subjective belief that conduct was illegal) Kennedy v. General Motors Corp., 226 F. Supp.2d 1257 (D. Kan. 2002)(genuine issues of material fact, as to whether employee subjectively believed supervisor’s conduct constituted sexual harassment under Title VII, and whether that belief was objectively reasonable, precluded summary judgment for employer on retaliation claim based on suspensions).

The following cases show what is considered protected activity under the “opposition” clause:

• “[A]n employee’s complaints about the treatment of others is considered a protected activity, even if the employee is not a member of the class that he claims suffered from discrimination, and even if the discrimination he complained about was not legally cognizable.” Ray v. Henderson, 217 F.3d 1234, 1240 (9^th Cir. 2000).

• Employee’s informal complaint to management qualifies as “protected activity” for purposes of a Title VII claim of retaliation. Arzate v. City of Topeka, 884 F. Supp. 1494 (D. Kan. 1995).

• Title VII’s prohibition against retaliatory discrimination protects activities ranging from the filing of a formal complaint to expressing a belief that the employer has engaged in discriminatory practices. Cobb v. Anheuser Busch, Inc., 793 F. Supp. 1457 (E.D. Mo. 1990).

• An employee who was fired after rejecting the advice of the company to testify negatively about a colleague’s job performance in an arbitration proceeding stated claim for retaliation. Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1085 (3d Cir. 1996).

• A male employee’s complaints about other male employees’ sexually harassing behavior constituted protected activity. Pfullman v. Texas Dep’t of Transp., 24 F. Supp. 2d 707, 712 (W.D. Tex. 1998).

• Title VII does not permit defamatory and libelous statements in the guise of protecting an employee’s right to oppose unlawful employment practices. Bartulica v. Paculdo, 411 F.Supp. 392 (W.D. Mo. 1976).

• Clinic employee’s filing of criminal complaint against clinic administrator for assault and battery qualified as opposition activity protected by Title VII’s retaliation provision, inasmuch as physical assault was culmination of administrator’s discriminatory acts of sexual harassment, and employee reasonably believed she was subjected to battery because of her gender. E.E.O.C. v. Dinuba Medical Clinic, 222 F.3d 580 (9^th Cir. 2000).

• To establish first element of prima facie case of retaliatory discharge under Title VII, namely that plaintiff was engaging in a protected activity, plaintiff must only show that she had reasonable belief that employment practice she protested was prohibited under Title VII; plaintiff does not need to prove that employment practice at issue was in fact unlawful under Title VII. Trent v. Valley Elec. Ass’n Inc., 41 F.3d 524 (9^th Cir. 1994).

The Participation Clause

The EEOC Guidelines (Volume 2, Sec. 8-11, C.2) provide that protected “participation” includes testifying, assisting, or preparing an affidavit in conjunction with a proceeding or investigation under Title VII, the ADEA, EPA or ADA. The coverage of the “participation” clause is broad and sometimes leads to incongruous results in court decisions. In Merrit v. Dillard Paper Co., 120 F.3d 1181 (11^th Cir. 1997), the employer discharged an employee after he admitted to sexual harassment in a deposition taken in another employee’s lawsuit. The discharged employee brought suit for unlawful retaliation. The court held the discharge unlawful, because the admission of harassment was a protected activity, since the employee’s deposition constituted “participation.”

However, plaintiff may lose the law’s protection if he or she repeats a false claim outside the privileged context. E.g., EEOC v. Total Sys. Servs., Inc., 221 F.3d 1171, 1175 (11^th Cir. 2000) (summary judgment for employer affirmed; court held that employer’s good faith belief that employee lied during internal sexual harassment investigation constituted legitimate nondiscriminatory reason for termination); Vasconcelos v. Meese, 907 F.2d 111, 113 (9^th Cir. 1990) (lying during an internal investigation was unprotected, even though lies in a charge or lawsuit would have been protected under the “participation” clause). But see Clover v. Total Sys. Servs., Inc., 176 F.3d 1346, 1353 (11^th Cir. 1999) (reversing its position in a prior panel decision in the case, the court held that “where an employer conducts its investigation in response to a notice of charge of discrimination, and is thus aware that the evidence gathered in that inquiry will be considered by the EEOC as part of its investigation, the employee’s participation is participation ‘in any manner’ in the EEOC investigation”).

The law requires actual participation in a Title VII proceeding, not merely a tangential relationship, for the individual to gain protection under the anti-retaliation clause. See the following cases:

• Employee’s vague oral threat to file a lawsuit is not participation; participation requires the filing of an actual charge. Burns v. Republic Sav. Bank, 25 F. Supp. 2d 809, 828-29 (N.D. Ohio 1998).

• The plaintiff’s charge alleged that he had been accused unjustly of sexual harassment; no claim was stated; being accused unjustly of sexual harassment “ha[s] nothing to do with [the employee’s] race, color, religion, sex or national origin,” so the plaintiff was not a protected individual; “[t]he EEOC had no more jurisdiction over this claim than it would have had of a charge that defendant had falsely accused him of reckless driving in the company parking lot.” Balazs v. Liebenthal, 32 F.3d 151, 159 (4^th Cir. 1994).

• Plaintiff could not state a viable retaliation claim based on complaint of discrimination filed by an individual with whom she had only a professional relationship. Millstein v. Henske, 79 FEP 176, 176-77 (D.C. 1999).

• The spouse of a charging party had no retaliation claim under the ADEA because the spouse had not participated in his wife’s statutorily protected filing; although a charging party’s relatives and friends often will fall under the participation clause in some manner, here the husband was simply a passive observer. Holt v. JTM Indus., Inc., 89 F.3d 1224, 1227 (5^th Cir. 1996).

The prudent employer will be wary of taking an adverse employment action, based on information given by the employee in an affidavit or statement to the EEOC or New Mexico Human Rights Division, or in a deposition given in a Title VII lawsuit.

Not Everything Is Protected Activity

What counts as protected activity is fairly broad. Nonetheless, not every complaint, even if touching on illegal discrimination, constitutes protected activity. For example, generalized and cursory complaints, unsupported by specific factual allegations, to an employer when those cursory complaints are neither related to, nor would reasonably lead to a proceeding provided for by statute, do not constitute “protected activity” for purposes of Title VII. Jeffries v. Kansas, 147 F.3d 1220, 1231 (10th Cir. 1998); Brower v. Runyon, 178 F.3d 1002, 1005 (8th Cir.1999). Moreover, complaints, even if otherwise legally protected opposition, may lose their protection under Title VII if they are wholly inappropriate or unnecessarily injurious to the employer’s interests. See, e.g., Matima v. Celli, 228 F.3d 68 (2d Cir. 2000)(plaintiff who repeatedly confronted and antagonized supervisors in inappropriate contexts not engaged in protected activity); Robbins v. Jefferson County Sch. Dist., 186 F.3d 1253, 1259 (10^th Cir. 1999) (plaintiff’s “activities were not reasonable and did not constitute protected opposition” where she had “lodged frequent, voluminous, and sometimes specious complaints and engaged in antagonistic behavior toward her superiors.”); Nelson v. Pima Comm. College, 83 F.3d 1075, 1082 (9^th Cir. 1996)(the plaintiff claimed that her employer retaliated against her for opposing the college’s affirmative action practices; the plaintiff’s conduct was not protected because she consistently disobeyed instructions and usurped the college president’s powers; insubordination is not protected activity). Finally, a plaintiff’s inability to identify the dates of the alleged protected activity may negate charges of retaliation. See, e.g., Higgins v. New Balance Athletic Shoe, Inc., 21 F. Supp. 2d 66, 73 (D. Me. 1998), vacated in part on other grounds, 194 F.3d 252 (1^st Cir. 1999).

VI. What Is An Adverse Employment Action?

“Adverse employment actions” include only “ultimate employment decisions . . . ‘such as hiring, granting leave, discharging, promoting, and compensating.’” Walker v. Thompson, 214 F.3d 615, 629 (5th Cir. 2000) (quoting Dollis v. Rubin, 77 F.3d 777, 782 (5th Cir.1995) (per curiam)); see also Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998)(defining “tangible employment action”). An employer’s action does not rise to the level of an “adverse employment action” when it fails to have more than a “mere tangential effect on a possible future ultimate employment decision.” Id. at 629. Speculative harm does not constitute adverse employment action. See Trimmer v. United States Dep’t of Labor, 174 F.3d 1098, 1103-04 (10th Cir. 1999) (in a case arising under a federal whistle blower statute, holding that employee’s evidence concerning future employment harm was too speculative to constitute adverse employment action).

Suspension without pay is an adverse employment action. Morfin v. Albuquerque Pub. Schs., 906 F.2d 1434, 1437 n. 3 (10th Cir.1990); compare with Haddon v. Executive Residence at White House, 313 F.3d 1352 (Fed. Cir. 2002) (a suspension without pay of up to14 days is not an adverse employment action under Merit System Protection Board). However, allegedly unjustified disciplinary measures, such as “counseling memoranda,” that have no material effect upon the terms and conditions of employment, are not adverse employment actions. See Allen v. Michigan Dep’t of Corrections, 165 F.3d 405, 408, 410, 413 (6th Cir.1999). Similarly, written reprimands are not adverse personnel actions and are not actionable under Title VII, Weston v. Pennsylvania, 251 F.3d 420 (3d Cir. 2001), nor are downgraded performance appraisals unaccompanied by a change in work duties. Page v. Bolger, 645 F.2d 227, 233 (4th Cir. 1981) (en banc); Kortan v. Cal. Youth Auth., 217 F.3d 1104, 1113 (9th Cir. 2000); see also Young v. White, 200 F. Supp.2d 1259 (D. Kan. 2002)(performance evaluation held not to be an adverse employment action).

Other actions not considered “adverse employment actions” for purposes of Title VII include the following:

• Mild criticism by the supervisor
• Alleged snubbing and hostility in the workplace
• Lateral transfer
• Shift changes
• Change of work assignment
• Lay-off applicable to all employees
• Snubbing by co-workers

A few courts have held that an employer’s legal actions (such as raising a frivolous defense to the former employee’s unemployment compensation claim, or filing a frivolous counterclaim in the lawsuit brought by the employee) are “adverse employment actions.” Certainly, the best course in litigation is to refrain from asserting frivolous claims and defenses.

VII. Disproving a Causal Connection.

The third element of Plaintiff’s prima facie case for retaliation requires him to prove that a causal nexus existed between the protected activity and the adverse employment action. Burrus v. United Tel. Co., 683 F.2d 339, 343 (10th Cir.), cert. denied, 459 U.S. 1071 (1982). A plaintiff can demonstrate a causal connection either by direct evidence or by inferences arising from an adverse employment action that closely follows the protected conduct. See Candelaria v. EG & G Energy Measurements, Inc., 33 F.3d 1259, 1261-62 (10th Cir. 1994). To demonstrate causation, a plaintiff ultimately must prove “that ‘but for’ the retaliatory motive,” the adverse action “would not have taken place.” Smith v. Maschner, 899 F.2d 940, 949-50 (10th Cir. 1990) (citations omitted); see also Holland v. Rimmer, 25 F.3d 1251, 1254 (4th Cir.1994); Seaman v. CSPH, Inc., 179 F.3d 297, 301 (5th Cir. 1999); Nguyen v. City of Cleveland, 229 F.3d 559, 562 (6th Cir.2000); Haywood v. Lucent Technologies, Inc., 323 F.3d 524 (7^th Cir. 2003); Reich v. Davis, 50 F.3d 962, 965-66 (11th Cir. 1995).

Here are some things to consider in establishing that there was no causal nexus between protected activity and an adverse employment action.

Temporal Proximity

Retaliators retaliate; they do not forebear.

A causal connection may be shown by “evidence of circumstances that justify an inference of retaliatory motive, such as protected conduct closely followed by adverse action.” Burrus, 683 F.2d at 343. Unless there is very close temporal proximity between the protected activity and the adverse employment action, the plaintiff must offer additional evidence to establish causation. See Conner v. Schnuck Mkts., Inc., 121 F.3d 1390, 1395 (10th Cir.1997). The Tenth Circuit has “held that a one and one-half month period between protected activity and adverse action may, by itself, establish causation. By contrast, . . . a three-month period, standing alone, is insufficient to establish causation.” Anderson v. Coors Brewing Co., 181 F.3d 1171, 1179 (10th Cir. 1999) (citation omitted). Absent close temporal proximity, causation will not be established by mere evidence of isolated, derogatory remarks about the protected class or by evidence that the plaintiff’s supervisors were condescending to protected class members and more critical of them than of other employees. Cone v. Longmont United Hosp. Ass’n., 14 F.3d 526, 531 (10th Cir. 1994); Shorter v. ICG Holdings, Inc., 188 F.3d 1204, 1209-10 (10th Cir. 1999).

Sometimes it may be advantageous to characterize the adverse employment action taken as merely the last step in a long process that preceded the protected activity, as some cases hold that where the culminating event is the last step in a process that began before the protected activity, an inference of retaliation may be dispelled. See, e.g., Slattery v. Swiss Reinsurance America Corp., 248 F.3d 87, 95 (2d Cir.) (“Where . . . gradual adverse job actions began well before the plaintiff had ever engaged in protected activity, an inference of retaliation does not arise.”), cert. denied, 534 U.S. 951 (2001); Quinn v. Green Tree Credit Corp., 159 F.3d 759, 769-70 (2d Cir. 1998) (discharge was non-retaliatory where the employer showed that the plaintiff had a history of similar misconduct towards clients and co-workers and this history had been the subject of a negative performance evaluation).

Finally, at least one case holds that it is the plaintiff’s burden to establish temporal proximity, and that a plaintiff’s inability to identify the dates of his alleged safety complaints negates charges of retaliation. Higgins v. New Balance Athletic Shoe, Inc., 21 F. Supp.2d 66, 73 (D. Me. 1998), vacated in part on other grounds, 194 F.3d 252 (1^st Cir. 1999). 

No Knowledge of Protected Activity

An employer cannot retaliate based on protected activity it does not know about. Lack ofknowledge breaks the causal chain. Here are some examples:

• Employer did not retaliate when it terminated employee one day before her scheduled FMLA leave was to begin, because decision maker had not knowledge that leave had been requested and scheduled. Brungart v. Bellsouth Telecoms, Inc., 231 F.3d 791 (11^th Cir. 2000), cert. denied, 121 S. Ct. 1998 (2001).

• Court held that former employee did not present sufficient evidence of causation where the evidence did not establish that any of the supervisors responsible for the former employee’s discharge knew about employee’s protected activity at the time of the discharge. Chaney v. New Orleans, Publ. Facility Mgmt., 179 F.3d 164, 169 (5^th Cir. 1999), cert. denied, 120 S. Ct. 1439 (2000).

• The plaintiff did not establish a causal connection between her filing of a discrimination claim and her nonplacement in a teaching position; there was no evidence that the individual who failed to place the plaintiff had any knowledge of the plaintiff’s discrimination claim. Sanchez v. Denver Pub. Sch., 164 F.3d 527, 533-34 (10^th Cir. 1998).

• The plaintiff, claiming retaliation for filing age discrimination charge, failed to show prima facie case where he presented no evidence that the supervisor responsible for the termination decision knew of his complaint. Causey v. Balog, 162 F.3d 795, 803-04 (4^th Cir. 1998).

• Once plaintiff alleged that he was discharged for assisting in another plaintiff’s filing of a discrimination charge, there was no triable question because the plaintiff’s had not presented any evidence upon which a jury could have found that the employer knew that one plaintiff had helped the other plaintiff file the charge. Smith v. Riceland Foods, Inc., 151 F.3d 813, 818 (8^th Cir. 1998).

• The plaintiff never informed the employer that she opposed an unlawful employment practice, i.e., that she had complained about sexual harassment, prior to her termination; case dismissed. Gleason v. Mesirow Fin., Inc., 118 F.3d 1134, 1146-47 (7^th Cir. 1997).

Obviously, in determining whether the decision maker had prior knowledge of protected activity, it is essential to identify who the decision maker is. Employers are well advised to the extent possible to segregate employees who deal with employee complaints and those who are responsible for making decisions regarding tangible employment actions; the more segregated this functions are, the lower the probability that a decision maker will have prior knowledge of protected activity. See, e.g., Fenton v. Hisan, Inc., 174 F.3d 827, 831-32 (6^th Cir. 1999) (summary judgment for employer on plaintiff’s Title VII retaliation claim because plaintiff could not show that those individuals responsible for the adverse action on which she based her claim were aware of plaintiff’s earlier sexual harassment complaint at the time they made their decision); Walden v. Georgia-Pacific Corp., 126 F.3d 506, 515 (3d Cir. 1997) (plaintiffs attempted to use stray remarks by non-decision makers to show employer bias; the court held that statements made by employees who were not decision makers could not fairly be attributed to the actual decision maker where no evidence of his retaliatory animus was proferred); Sherrod v. American Airlines, Inc., 132 F.3d 1112, 1122 (5^th Cir. 1998) (ADA and ADEA case; the causal link between the protected activity and the allegedly retaliatory act “can be severed if there is evidence that the ultimate decision maker did not merely ‘rubber stamp’ the recommendation of the employee with knowledge of the protected activity, but conducted an independent investigation into the circumstances surrounding the employee’s termination”).

Intervening Positive Employment Actions

An inference of retaliation may be negated when there is evidence that the employer did “nice things” for the plaintiff after it learned of the plaintiff’s protected activity, but before the alleged adverse employment action. See, e.g., Goosby v. Johnson & Johnson Med., Inc., 228 F.3d 313 (3d Cir. 2000) (no retaliation found where employer held plaintiff’s position open for a full 26 weeks of disability before she was terminated); Coffman v. Tracker Marine, L.P., 141 F.3d 1241, 1248 (8^th Cir. 1998) (the plaintiff alleged that she was constructively discharged in retaliation for having filed a sexual harassment complain against the employer; the court found that there was insufficient evidence to support the claim because the company had taken corrective action on plaintiff’s prior harassment complaint, had given plaintiff a favorable performance review, and had tried to prevent plaintiff from resigning from her job); Standard v. A.B.E.L. Servs., Inc., 161 F.3d 1318, 1325 (11^th Cir. 1998) (the plaintiff’s ADA retaliation claim involving employer’s failure to accommodate his alleged back injury was negated by evidence that management gave him special assistance with heavy lifting, and that co-workers “gave him help every time he requested it”); Soileau v. Guilford of Maine, Inc., 105 F.3d 12, 17 (1^st Cir. 1997) (the plaintiff claimed that the employer retaliated against him after he requested a reasonable accommodation; but the employer granted the employee’s request for an accommodation); Brady v. Houston Indep. Sch. Dist., 113 F.3d 1419, 1424 (5^th Cir. 1997 (plaintiff received positive evaluations and was twice recommended for a promotion).

VIII. 10 Rules to Live By.

Retaliation claims can be difficult to defend. Of all the discrimination claims, they are the easiest for plaintiffs to set up. Employees who are anticipating adverse employment action sometimes engage in protected activity to create the appearance of retaliation. There are, however, 10 simple rules you can follow to protect yourself from claims of retaliation:

(1) Remember that former employees and non-employees can bring retaliation claims.

(2) Assume that every complaint an employee makes has statutory or common-law anti-retaliation protection attached to it; proceed cautiously.

(3) Document every complaint an employee makes, whether the complaint is formal or informal, written or oral, made directly or overheard.

(4) Limit access to information about the complaint.

(5) Document who is given access to information about the complaint.

(6) Respond to the complaint in writing.

(7) Document all personnel actions, good and bad.

(8) Keep detailed notes on all processes, discussions, investigations, etc., leading up to an adverse personnel action, and indicate which way you are leaning (to disprove temporal proximity should the employee file a pre-emptive charge).

(9) Segregate employees involved in investigative functions and those responsible for employment actions. Segregate information related to each process.

(10) Institute substantive review procedures for all adverse employment actions. Document such reviews. Inform employees that adverse employment actions are provisional pending final review.

If you do not discriminate against employees who engage in protected activity and you followthe 10 rules cited above, it will be relatively easy for you.