KIESEWETTER WISE KAPLAN PRATHER, PLC � ATTORNEYS AT LAW 3725 Champion Hills Drive � Suite 3000 � Memphis, Tennessee � 38125 � 901-795-6695 � Fax: 901-795-1646 �

www.kiesewetterwise.com

MANAGING EMPLOYEES WHO HAVE MADE COMPLAINTS OF UNLAWFUL CONDUCT

bySteven Hymowitz*

R. Bradley Mokros��Eileen Kuo***

ABA Section of Labor & Employment Law 3rd Annual CLE Conference

Washington, D.C. November 4 - 7, 2009

* Steven Hymowitz is a member of the law firm of Kiesewetter Wise Kaplan Prather, PLC. The firm limits its practice exclusively to the representation of management in the field of labor and employment law. Mr. Hymowitz received his B.S. degree from Fordham University and graduated from University of Memphis School of Law in 1974, where he was an Associate Editor of the Law Review. Mr. Hymowitz is a former Management Co-chair of the Committee on Employment Rights and Responsibilities of the American Bar Association Labor and Employment Law Section, listed in Best Lawyers in America (1989-2009), Mid-South Superlawyers, International Who’s Who of Labor and Employment Lawyers, Who’s Who in American Law, Corporate Counsel Magazine’s Best Lawyers, and is a Fellow of the College of Labor and Employment Lawyers. �� R. Bradley Mokros is a Legal Research Specialist in the law firm of Kiesewetter Wise Kaplan Prather, PLC. Mr. Mokros provides research support for various types of labor and employment litigation in federal and state courts, as well as before the National Labor Relations Board and labor arbitrators. He received his B.A. degree from Washington University in St. Louis. *** Eileen Kuo is an associate of the law firm of Kiesewetter Wise Kaplan Prather, PLC. Ms. Kuo graduated from Duke University School of Law, where she served as Senior Research Editor for the Duke Journal of Gender Law and Policy and as Editor in Chief for the Duke law school paper. Ms. Kuo previously clerked for King and Wood in Beijing, China and interned for the Court of Appeals in Raleigh, North Carolina.

TABLE OF CONTENTS

I. INTRODUCTION ..................................................................................................................1

II. RETALIATION CLAIMS .....................................................................................................1

A. Protected Activities ........................................................................................................2

1. Participation in Protected Activities ........................................................................2

2. Reasonable Opposition to Unlawful Employment Practices ...................................3

3. Protection Against Third Party Retaliation ..............................................................4

B. Adverse Action ...............................................................................................................6

1. Burlington Northern Standard .................................................................................6

2. Adverse Action Against Former Employees ...........................................................8

C. Causation ........................................................................................................................8

1. Knowledge of Protected Activity .............................................................................9

2. Temporal Proximity .................................................................................................9

3. Liability for Co-Worker Retaliation ......................................................................10

4. Legitimate, Nondiscriminatory Reason and Pretext ..............................................11

III. STATUTORY PROTECTIONS AGAINST RETALIATION ........................................12

A. Federal Statutes ...........................................................................................................12

1. Title VII of the Civil Rights Act of 1964 ...............................................................12

2. The Americans with Disabilities Act .....................................................................12

3. The Age Discrimination in Employment Act ........................................................13

4. Fair Labor Standards Act .......................................................................................13

5. Family and Medical Leave Act ..............................................................................14

6. Employee Retirement Income Security Act ..........................................................15

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7. Section 1981 of the Civil Rights Act of 1886 ........................................................16

8. False Claims Act ....................................................................................................17

9. Fraud Enforcement and Recovery Act of 2009 .....................................................17

10. Sarbanes-Oxley Act of 2002 ..................................................................................18

11. Occupational Safety and Health Act ......................................................................20

12. The McCaskill Amendment to the American Recovery and Reinvestment Act of 2009........................................................................................................................21

13. Energy Reorganization Act ....................................................................................21

B. State Whistleblower Statutes ......................................................................................22

IV. BEST PRACTICES TO AVOID LIABILITY ..................................................................23

A. How Jurors View Employers and Retaliation Claims .............................................23

B. Important Steps Employers Can Take to Minimize the Risk of Whistleblower Retaliation ....................................................................................................................24

V. CONCLUSION .....................................................................................................................26

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TABLE OF AUTHORITIES

Cases

Ackerly, 180 F.3d 997 (9th Cir. 1999) .......................................................................................... 13 Addis v. Dep't of Labor, 575 F.3d 688 (7th Cir. 2009) ................................................................. 10 Allen v. Admin. Review Bd., 514 F.3d 468 (5th Cir. 2008) ..................................................... 19, 20 Arraleh v. County of Ramsey, 461 F.3d 967 (8th Cir. 2006) .......................................................... 9 Ball v. Memphis BBQ Co., Inc., 228 F.3d 360 (4th Cir. 2000) ..................................................... 14 Becker v. Mack Trucks, 281 F.3d 372 (3d Cir. 2002) ................................................................... 16 Bergene v. Salt River Project Agric. Improvement & Power Dist., 272 F.3d 1136 (9th Cir. 2001)

................................................................................................................................................... 11 Berry v. Stevinson Chevrolet, 74 F.3d 980 (10th Cir. 1996) .......................................................... 8 Bilow v. Much Shelist Freed Denenberg Ament & Rubenstein, 227 F.3d 882 (7th Cir. 2001) .... 15 Bozeman v. Per-Se Techs., Inc., 456 F. Supp. 2d 1282 (N.D. Ga. 2006) ....................................... 7 Brown v. Gen. Servs. Admin., 425 U.S. 820 (1976) ........................................................................ 1 Bryant v. Dollar General Corp., 538 F.3d 394 (6th Cir. 2008) .................................................... 14 Bryson v. Regis Corp., 498 F.3d 561 (6th Cir. 2007) ................................................................... 15 Burlington Northern & Santa Fe Ry. Co. v. White, 126 S. Ct. 2405 (2006) .......................... 6, 7, 8 Carmona-Rivera v. Puerto Rico, 464 F.3d 14 (1st Cir. 2006) .................................................. 7, 12 CBOCS West, Inc. v. Humphries, 128 S. Ct. 1951 (2008) ............................................................ 17 Chandler v. Specialty Tires of America, Inc., 283 F.3d 818 (6th Cir. 2002) ................................ 14 Chapin v. Nationwide Mutual Ins. Co., 2007 U.S. Dist. LEXIS 21176 (S.D. Ohio March 26,

2007) ......................................................................................................................................... 13 Clark County School Dist. v. Breeden, 532 U.S. 268 (2001) ............................................... 4, 9, 10 Collins v. Beazer Homes USA, Inc., 334 F. Supp.2d 1365 (N.D. Ga. 2004) .......................... 19, 20 Conkwright v. Westinghouse Elec. Corp., 933 F.2d 231 (4th Cir. 1991) ..................................... 16 Contreras v. Suncast Corp., 237 F.3d 756 (7th Cir. 2001) .............................................................. 8 Cosgrove v. Sears, Roebuck & Co., 9 F.3d 1033 (2d Cir. 1993) .................................................... 2 Crawford v. Chao, 2005 U.S. App. LEXIS 26935 (11th Cir. Dec. 7, 2005) ................................ 11 Crawford v. Metropolitan Government of Nashville and Davidson County, 129 S. Ct. 846 (2009)

................................................................................................................................................. 3, 5 Darveau v. Detecon Inc., 515 F.3d 334 (4th Cir. 2008) ........................................................... 7, 13 Davis v. Dallas Area Rapid Trans., 383 F.3d 309 (5th Cir. 2004) ........................................... 1, 16 Day v. Staples, Inc., 555 F.3d 42 (1st Cir. 2009) .......................................................................... 19 De Medina v. Reinhardt, 444 F. Supp. 573 (D.D.C. 1978) ........................................................ 2, 6 Devin v. Schwan's Home Serv., Inc., 491 F.3d 778 (8th Cir. 2007) ............................................... 7 Dewitt v. Proctor Hosp., 517 F.3d 944 (7th Cir. 2008) ................................................................ 16 Dey v. Colt Constr. & Dev. Co., 28 F.3d 1446 (7th Cir. 1994) ...................................................... 3 Dister v. Cont’l Group, Inc., 859 F.2d 1108 (2d Cir. 1988) ......................................................... 15 Duncan v. Manager, Dept. of Safety, City and County of Denver, 397 F.3d 1300 (10th Cir. 2005)

..................................................................................................................................................... 1 EEOC v. Nalbandian Sales, Inc., 36 F. Supp. 2d 1206, 1212 (E.D. Cal. 1998) ............................. 6 Erdman v. Nationwide Ins. Co., --- F.3d ---, 2009 U.S. App. LEXIS 20979 (3rd Cir. Sept. 23,

2009) ......................................................................................................................................... 15 Fogleman v. Mercy Hosp., Inc., 283 F.3d 561 (3d Cir. 2002) .................................................... 5, 6

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Foley v. Univ. of Houston Sys., 324 F.3d 310 (5th Cir. 2003) ...................................................... 17 Freadman v. Metro. Prop. and Casualty Ins. Co., 484 F.3d 91 (1st Cir. 2007) ........................... 12 Fye v. Okla. Corp. Comm'n, 516 F.3d 1217 (10th Cir. 2008) ...................................................... 11 Gee v. Principi, 289 F.3d 342 (5th Cir. 2002) .............................................................................. 11 Gomez-Perez v. Potter, 128 S. Ct. 1931 (2008) ............................................................................ 13 Gregory v. Georgia Dept. of Human Resources, 355 F.3d 1277 (11th Cir. 2004) ......................... 1 Griffin v. Citgo Petroleum Corp., 2008 U.S. Dist. LEXIS 101533 (W.D. La. Oct. 28, 2008) ..... 11 Hall v. Bodine Elec. Co., 276 F.3d 354 (7th Cir. 2002) ............................................................... 11 Hamilton v. GE, 556 F.3d 428 (6th Cir. 2009) ............................................................................. 11 Hardage v. CBS Broadcasting Inc., 427 F.3d 1177 (9th Cir. 2005) ............................................. 10 Harris-Childs v. Medco Health Solutions, Inc., 169 Fed. Appx. 913 (5th Cir. Mar. 13, 2006) ..... 4 Hawkins v. Anheuser-Busch, Inc., 517 F.3d 321 (6th Cir. 2008) ................................................. 11 Haynes v. Level 3 Communications LLC, 456 F.3d 1215 (10th Cir. 2006) .................................... 9 Heimann v. Nat’l Elevator Ind. Pension Fund, 187 F.3d 493 (5th Cir. 1999) ............................. 16 Hervey v. County of Koochiching, 527 F.3d 711 (8th Cir. 2008) ................................................... 9 Higgins v. Gonzales, 481 F.3d 578 (8th Cir. 2007) ........................................................................ 7 Hirst v. Southeast Airlines Inc., 2007 DOL Ad. Rev. Bd. LEXIS 7 ............................................... 7 Holt v. JTM Industries, 89 F.3d 1224 (5th Cir. 1996) .............................................................. 6, 13 Ianetta v. Putnam Invest., Inc., 183 F. Supp. 2d 415 (D. Mass. 2002) ......................................... 12 Jackson v. Birmingham Bd. of Ed, 544 U.S. 167 (2005) .............................................................. 13 Johnson-Romaker v. Kroger Ltd. P'ship One, 609 F. Supp. 2d 719 (N.D. Ohio 2009) ................. 9 Kessler v. Westchester County Dep’t of Social Services, 461 F.3d 199 (2d Cir. 2006) ........... 7, 13 Kouvchinov v. Parametric Tech. Corp., 537 F.3d 62 (1st Cir. 2008) ........................................... 15 Krouse v. American Sterilizer Co., 126 F.3d 494 (3rd Cir. 1997) ................................................ 12 Lambert v. Ackerly, 180 F.3d 997 (9th Cir. 1999) ........................................................................ 13 Lambert v. Genessee Hosp., Inc., 10 F.3d 46 (2nd Cir. 1993) ..................................................... 14 Lightner v. City of Wilmington, 545 F.3d 260 (4th Cir. 2008) ..................................................... 12 Lipphardt v. Durango Steakhouse, 267 F.3d 1183 (11th Cir. 2001) ............................................ 12 Long v. Eastfield Collage, 88 F.3d 300 (5th Cir. 1996) ............................................................... 11 Majewski v. Automatic Data Processing, Inc., 274 F.3d 1106 (6th Cir. 2001) ............................ 15 Manning v. Chevron Chem. Co., 332 F.3d 874 (5th Cir. 2003) ..................................................... 9 Matima v. Celli, 228 F.3d 68 (2d Cir. 2000) ................................................................................... 2 Mattei v. Mattei, 126 F.3d 794 (6th Cir. 1997) ............................................................................. 16 McCann v. Tillmani, 526 F.3d 1370 (11th Cir. 2008) .................................................................. 8,9 McCoy v. City of Shreveport, 492 F.3d 551 (5th Cir. 2007) ........................................................... 7 McKenzie v. Bellsouth Telecomms., Inc., 123 F.3d 935 (6th Cir. 1997) ...................................... 17 Merritt v. Dillard Paper Co., 120 F.3d 1181 (11th Cir. 1997) ................................................. 2, 25 Metzler v. Federal Home Loan Bank of Topeka, 464 F.3d 1164 (10th Cir. 2006) ......................... 7 Mickey v. Zeidler Tool and Die Co., 516 F.3d 516 (6th Cir. 2008) ................................................ 9 Miller v. Automobile Club of New Mexico, Inc., 420 F.3d 1098 (10th Cir. 2005) ......................... 9 Mondzelewski v. Pathmark Stores, Inc., 162 F.3d 778 (3rd Cir. 1998) ........................................ 12 Morefield v. Exelon Servs., Inc., 2004-SOX-2 (DOL ALJ Jan. 28, 2004) ................................... 18 Munday v. Waste Mgmt. of N. Am., 126 F.3d 239 (4th Cir. 1997) ................................................. 1 Nagy v. Tee Vee Toons, Inc., 2004 U.S. Dist. LEXIS 8400 (S.D.N.Y. May 12, 2004) .................. 2 Navarro v. Pfizer Corp., 261 F.3d 90 (1st Cir. 2001) ................................................................... 14 Niswander v. Community Insurance Co., 529 F.3d 714 (6th Cir. 2008) ........................................ 4

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Passer v. American Chemical Society, 935 F.2d 322 (D.C. Cir. 1991) .......................................... 8 Perrin v. United States, 444 U.S. 37 (1979) ................................................................................... 3 Pryor v. Seyfarth, Shaw, Fairweather & Geraldson, 212 F.3d 976 (7th Cir. 2000) ...................... 2 Richardson v. N.Y. State Dep’t of Correctional Service, 180 F.3d 426 (2d Cir. 1999) .......... 10, 11 Robertson v. Bell Helicopter Textron, Inc., 32 F.3d 948 (5th Cir. 1994) ..................................... 17 Robinson v. Shell Oil Co., 519 U.S. 337 (1997) ............................................................................. 8 Selenke v. Medical Imaging of Colo., 248 F.3d 1249 (10th Cir. 2001) ........................................ 12 Shaver v. Indep. Stave Co., 350 F.3d 716 (8th Cir. 2003) .............................................................. 8 Smith v. Riceland Foods, Inc., 151 F.3d 813 (8th Cir. 1998) ......................................................... 5 Standard v. A.B.E.L. Serv., Inc., 161 F.3d 1318 (11th Cir. 1998) ................................................ 12 Stewart v. Happy Herman’s Cheshire Bridge, Inc., 117 F.3d 1278 (11th Cir. 1997) .............. 4, 12 Stone & Webster Eng'g Corp., 115 F.3d 1568 (11th Cir. 1997) ................................................... 22 Sullivan v. Little Hunting Park, Inc., 396 U.S. 229 (1969) .......................................................... 13 Thomas v. City of Beaverton, 379 F.3d 802 (9th Cir. 2004) ........................................................... 9 Thompson v. North American Stainless, LP, 567 F.3d 804 (6th Cir. 2009) ................................... 4 United States v. BWXT Y-12, L.L.C., 525 F.3d 439 (6th Cir. 2008) ............................................. 17 Upshaw v. Ford Motor Co., 2009 U.S. App. LEXIS 18137 (6th Cir. Aug. 14, 2009) ................. 25 Van Asdale v. International Game Technology, 2009 U.S. App. LEXIS 18037 (9th Cir. Aug. 13,

2009) ......................................................................................................................................... 20 Van Horn v. Best Buy Stores LP, 526 F.3d 1144 (8th Cir. 2008) ................................................. 11 Wengender v. Robert Half Int’l Inc., 2005-SOX-59 (Dep’t of Labor Mar. 30, 2006).................. 19 West v. Greyhound Corp., 813 F.2d 951 (9th Cir. 1987) .............................................................. 16 Yanowitz v. L'Oreal USA, Inc., 36 Cal. 4th 1028 (Cal. 2005) ........................................................ 4

Statutes

18 U.S.C. §§ 1513(e) .................................................................................................................... 21 29 CFR § 1980.104(c)................................................................................................................... 24 29 CFR § 1980.109(a)................................................................................................................... 24 29 U.S.C. § 1140 ..................................................................................................................... 18, 19 29 U.S.C. § 215(a)(3) ................................................................................................................ 6, 17 29 U.S.C. § 2601 ............................................................................................................................. 6 29 U.S.C. § 2615 ..................................................................................................................... 17, 18 29 U.S.C. § 2615(a)(2) .................................................................................................................. 18 29 U.S.C. § 2617(a)(2) .................................................................................................................. 17 29 U.S.C. § 623(d) ........................................................................................................................ 16 29 U.S.C. § 633a(a)....................................................................................................................... 16 29 U.S.C. § 660(c)(1) .................................................................................................................... 24 29 U.S.C. §§ 2612(a)(1) ................................................................................................................ 17 31 U.S.C. § 3729 ..................................................................................................................... 20, 21 31 U.S.C. § 3729(a) ...................................................................................................................... 20 31 U.S.C. § 3730(h) ...................................................................................................................... 20 42 U.S.C. § 12203 ................................................................................................................... 12, 16 42 U.S.C. § 12203(a) .................................................................................................................... 16 42 U.S.C. § 1981(a) ...................................................................................................................... 20 42 U.S.C. § 1981(b) ...................................................................................................................... 20 42 U.S.C. § 2000e-3(a) ............................................................................................................... 5, 6

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42 U.S.C. § 2000e-3(a) ................................................................................................................... 6 42 U.S.C. § 5851 ..................................................................................................................... 25, 26 42 U.S.C. § 5851(b)(3)(D) ............................................................................................................ 26 42 U.S.C.S. § 5851(b) ............................................................................................................. 13, 25 42 U.S.C.S. § 5851(b)(3) .............................................................................................................. 25

I. INTRODUCTION

According to the recent statistics released by the Equal Employment Opportunity Commission (“EEOC”), in fiscal year 2007, the EEOC received 26,663 charges of retaliation discrimination based on all the statutes enforced by the EEOC, and 32,690 in the fiscal year 2008. Retaliation claims rose by 18 percent between 2006 and 2007, and 23 percent between 2007 and 2008.

The situations that give rise to potential retaliation suits may start simply as a bad workplace relationship with an employee who is “difficult” or lowers morale with seemingly constant complaints. Without appreciating the difference between unexplained insubordination and acts related to perceived unlawful employment practices, an employer may inadvertently expose itself to liability. Damages in retaliation claims can be substantial, and employers need to be aware of the multiple high-risk issues raised when a current employee decides to act or speak out against an employer’s discriminatory practices so that they can address these issues proactively and prevent retaliation claims in the future.

Accordingly, dealing appropriately with high-risk issues in the workplace requires knowledge and awareness of the types of activities that are protected by federal and state statutes, as well as being sensitive to the treatment of these activities at all times.

This paper will identify the sources and elements of a retaliation claim and then provide an overview of the types of employment practices that may assist an employer avoid liability when dealing with these issues.

II. RETALIATION CLAIMS

To establish a claim of retaliation under the federal discrimination statutes, an employee must show: (1) that he engaged in a protected activity; (2) that he suffered an adverse employment action; and (3) that the adverse employment action was caused by the protected activity. See Davis v. Dallas Area Rapid Trans., 383 F.3d 309, 319 (5th Cir. 2004); Munday v. Waste Mgmt. of N. Am., 126 F.3d 239, 242 (4th Cir. 1997).1

1 Before filing a retaliation action in federal court, a claimant first must exhaust his administrative remedies by filing a claim of discrimination with the appropriate federal or state agency, such as the EEOC. See Brown v. Gen. Servs. Admin., 425 U.S. 820, 823-33 (1976). However, failure to exhaust administrative remedies may or may not defeat a retaliation claim. A majority of courts have concluded that a retaliation claim may proceed despite the complainant’s failure to include a complaint of retaliation in an EEOC charge as long as the retaliation claim is reasonably related to the factual allegations of the timely-filed discrimination claims. See, e.g., Gregory v. Georgia Dept. of Human Resources, 355 F.3d 1277, 1280 (11th Cir. 2004). The Tenth Circuit alone has found that a complainant may not claim retaliatory incidents occurring after the filing of an EEOC charge. See Duncan v. Manager, Dept. of Safety, City and County of Denver, 397 F.3d 1300 (10th Cir. 2005).

1

A. Protected Activities

It is an unlawful employment practice to discriminate against an employee (1) because she has opposed an unlawful employment practice defined by federal or state employment statutes (opposition claim); or (2) because she has participated or assisted in any manner in an activity protected by federal or state employment statutes (participation claim). See, e.g., 42 U.S.C. § 2000e-3(a); Crawford v. Metro. Gov't of Nashville & Davidson County, 129 S. Ct. 846, 850 (2009); Matima v. Celli, 228 F.3d 68, 79 (2d Cir. 2000).2

1. Participation in Protected Activities

Generally, exercising rights protected by employment statutes constitute participation in protected activities. The anti-retaliation provisions of Title VII, the Family and Medical Leave Act (“FMLA”) and the Fair Labor Standards Act (“FLSA”) provide that making a charge, testifying, assisting, or otherwise participating in an investigation, proceeding or hearing under those statutes are protected activities for which an employer may not retaliate against an employee. See, e.g., 42 U.S.C. § 2000e-3(a) (Title VII); 29 U.S.C. § 2601 (FMLA); 29 U.S.C. § 215(a)(3) (FLSA).

An employee need not prevail on the merits of their complaint regarding an underlying unlawful employment practice to establish participation in a protected activity. Cosgrove v. Sears, Roebuck & Co., 9 F.3d 1033, 1039 (2d Cir. 1993). When an employee complains of discrimination, whether the employer had actually been discriminating may be irrelevant. In lawsuits that involve discrimination as well as retaliation, it is entirely possible for a jury to find the employer not liable on the discrimination claim but liable for retaliation. In Pryor v. Seyfarth, Shaw, Fairweather & Geraldson, 212 F.3d 976, 980 (7th Cir. 2000), the Seventh Circuit upheld the lower court’s dismissal of the plaintiff’s sexual harassment claim, but reversed dismissal of the retaliation claim, allowing it to go forward for trial before a jury. In this case, the court found sufficient doubt that the provided reasons for the plaintiff’s termination were not merely pretext to cover up retaliatory intent, so that a trial was deemed appropriate to determine this question of fact. At least one court has found, however, that applying for FMLA leave is not a protected activity when an employee is not eligible for leave. Nagy v. Tee Vee Toons, Inc.,2004 U.S. Dist. LEXIS 8400, at *5 (S.D.N.Y. May 12, 2004).

Giving testimony that favors an individual participating in a protected activity can itself constitute a protected activity. In Merritt v. Dillard Paper Co., 120 F.3d 1181 (11th Cir. 1997), the alleged sexual harasser gave testimony that was more favorable to the alleged victim than to the employer and was subsequently terminated. The Eleventh Circuit found that the testimony given during an EEOC proceeding constituted protected activity. Id. at 1190-91.

2 In limited circumstances and jurisdictions, it also is unlawful to discriminate against a third party because of an employee’s participation in a protected activity. See, e.g., De Medina v. Reinhardt, 444 F. Supp. 573 (D.D.C. 1978) (finding that allowing retaliation against third parties would deter people from exercising their protected rights and that legislative intent included the prohibition of retaliation against third parties). The majority of courts, however, do not permit third-party retaliation claims. See Section II.A.3 infra.

2

2. Reasonable Opposition to Unlawful Employment Practices

Fear of retaliation is a leading reason why people stay silent instead of voicing their concerns about bias and discrimination. Thus, opposing an unlawful employment practice is a protected activity that the courts increasingly construe broadly. “Oppose” is not defined in the anti-discrimination statutes, and for that reason courts have interpreted the statutes using the ordinary meaning of the word: “to resist or antagonize … ; to contend against; to confront; resist; withstand.” Perrin v. United States, 444 U.S. 37, 42 (1979). Activities in opposition to practices that are factually and legally violations of employment statutes are obviously protected, but even when the conduct is not factually or legally discriminatory, opposition is protected if an employee believes in good faith that her employer’s practices are discriminatory. See Dey v. Colt Constr. & Dev. Co., 28 F.3d 1446, 1458 (7th Cir. 1994) (holding that an employee may bring a retaliation case even though the challenged activity did not actually violate Title VII as long as there was a reasonable, good-faith belief).

In Crawford v. Metropolitan Government of Nashville and Davidson County, 129 S. Ct. 846 (2009), the Supreme Court considered whether the anti-retaliation provision of section 704(a) of Title VII protects an employee from being dismissed because she cooperated with an internal investigation of sexual harassment complaints against another employee where no EEOC charge had been filed prior to the investigation. Plaintiff Vicky Crawford, who worked as a Metro employee for thirty years, was fired after being accused of embezzlement and drug use. Prior to her termination, Crawford participated in the internal investigation of sexual harassment complaints against Metro’s employee relations director.

After being terminated, Crawford filed suit against Metro alleging that her actions during the internal investigation constituted both opposition to a practice made unlawful by Title VII and participation in an investigation under Title VII, and that she therefore engaged in protected activity under the retaliation provisions of Title VII. Affirming the lower court’s decision, the Sixth Circuit held that Crawford’s cooperation with Metro’s internal investigation was “not the kind of overt opposition” that is required for protection under Title VII. Additionally, the Sixth Circuit held that Crawford’s participation in Metro’s investigation, in the absence of any pending EEOC charge, was not protected activity under Title VII’s participation clause. The Supreme Court granted certiorari to address the issue of whether the anti-retaliation provision of section 704(a) of Title VII protects an employee from being dismissed because she participated in her employer’s internal investigation of sexual harassment in the absence of a pending EEOC charge.

The Supreme Court unanimously decided the opposition clause of Title VII applied where the employee gave a “disapproving account” of unlawful behavior even if the employee did not take further action on her own to stop or remedy the conduct.3 The Court stated that there is no reason to doubt that a person can “oppose” unlawful conduct by responding to someone else’s question or complaint. According to the Court, nothing in Title VII requires the

3 Since the Court’s ruling on the applicability of the opposition clause resolved the case, the Court did not address whether internal complaints, without more, would be protected under the participation clause of Title VII.

3

“freakish” rule which protects an employee who reports discrimination on her own initiative but not one who reports the same discrimination in the same words when her boss asks a question. It is now clear, therefore, that protected opposition may include “making complaints to management, writing critical letters to customers, protesting against discrimination by industry or society in general, and expressing support of co-workers who have filed formal charges.” SeeClark County School Dist. v. Breeden, 532 U.S. 268, 271 (2001).4

Employees in supervisory positions also may be protected when they oppose unlawful employment practices. Refusing to follow discriminatory instructions given by a supervisor is a protected oppositional activity if a trier of fact could reasonably find that the employee objected to those instructions out of belief that they were discriminatory. See Yanowitz v. L'Oreal USA, Inc., 36 Cal. 4th 1028, 1047 (Cal. 2005) (a supervisor continually requested that an employee fire a sales associate whom the supervisor did not believe to be attractive enough, and the employee requested adequate justification for dismissal). The question in such cases is not whether a formal charge or complaint is made but whether the employee sufficiently communicated legitimate concerns that the employer is acting in a discriminatory manner. Legal terms and buzzwords are not necessary for a finding that an employee communicated such concerns, though employers are not expected to puzzle over every grievance or vague conclusory remark by an employee to seek out cloaked complaints of discrimination. Id. See also Harris-Childs v. Medco Health Solutions, Inc., 169 Fed. Appx. 913, 916 (5th Cir. Mar. 13, 2006) (District court properly found “‘there is no evidence that [plaintiff], when she made her complaints to management, ever mentioned that she felt she was being treated unfairly due to race or sex. … Accordingly, …[the plaintiff] failed to demonstrate that she engaged in a protected activity under Title VII.’”).

Despite these protections, a complainant nevertheless may be disciplined for misconduct such as insubordination, etc. See, e.g., Stewart v. Happy Herman’s Cheshire Bridge, Inc., 117 F.3d 1278, 1287 (11th Cir. 1997) (where alleged acts of insubordination occurred around the same time as the alleged retaliation, “no inference of retaliation based on suspect timing’ arises”); Niswander v. Community Insurance Co., 529 F.3d 714 (6th Cir. 2008) (holding employer may lawfully terminate employee who disclosed confidential, proprietary company documents in violation of company privacy policy, where employee’s conduct in disclosing the confidential information did not constitute either participation or opposition under Title VII).

3. Protection Against Third Party Retaliation

In Thompson v. North American Stainless, LP, 567 F.3d 804 (6th Cir. 2009) (en banc), the full Sixth Circuit held that a Title VII retaliation claim by a third-party required actual engagement in protected activity by the third-party. Plaintiff, Eric Thompson, sued North American for violation of Title VII alleging retaliatory discharge based on the protected activity of Thompson's fiancée, a co-worker. The district court granted the employer's motion for summary judgment.

4 The Court in Breeden ultimately held, however, that no reasonable person could have believed that the single isolated incident recounted by plaintiff violated Title VII’s severe and pervasive standard. 532 U.S. at 271.

4

On appeal, the Sixth Circuit described the sole issue as whether section 704(a) of Title VII created a cause of action for third-party retaliation for persons who did not engage in protect activity. Because Thompson did not allege he engaged in any statutorily protected activity (i.e., did not oppose an unlawful employment practice, make a charge, testify, assist, or participate in an investigation), the court found by the plain language of Title VII that Thompson was not included in the class of persons for whom Congress created a retaliation cause of action. In so ruling, the Sixth Circuit joined the Third, Fifth, and Eighth Circuit Courts of Appeals. The court distinguished the Supreme Court’s recent decision in Crawford v. Metro Gov't of Nashville and Davidson County, 129 S. Ct. 846 (2009) – which abrogated the Sixth Circuit's view that Title VII’s opposition clause required active, consistent behavior – by noting that Crawford involved involuntary testimony while Thompson did not engage in any protected activity.

In Fogleman v. Mercy Hosp., Inc., 283 F.3d 561 (3d Cir. 2002), the Third Circuit addressed the issue of third-party retaliation claims under the ADA and the ADEA. There, plaintiff claimed that he was fired in retaliation for his father's discrimination complaint filed against their joint employer. As a preliminary matter, the court noted that the anti-retaliation provisions of the ADA and the ADEA are nearly identical to each other and to the anti-retaliation provision of Title VII. Thus, the “precedent interpreting any one of these statutes is equally relevant to interpretation of the others.” Id. at 567. The Third Circuit emphatically rejected the notion of ambiguity:

The plain text of the anti-retaliation provisions requires that the person retaliated against also be the person who engaged in the protected activity: Each statute forbids discrimination against an individual because "such individual" has engaged in protected conduct. By their own terms, then, the statutes do not make actionable discrimination against an employee who has not engaged in protected activity. Read literally, the statutes are unambiguous -- indeed, it is hard to imagine a clearer way of specifying that the individual who was discriminated against must also be the individual who engaged in protected activity.

Id. at 568. The Third Circuit also rejected the notion that enforcement of the plain meaning of the statute would lead to dire results and, in fact, stated that there "are at least plausible policy reasons why Congress might have intended to exclude third-party retaliation claims." Id. at 567.

In Smith v. Riceland Foods, Inc., 151 F.3d 813 (8th Cir. 1998), the plaintiff claimed he was discharged in retaliation for the filing of a discrimination charge by a female employee who lived with him. He argued that he was not required to show that he personally engaged in protected activity to establish a prima facie case of retaliation under Title VII and urged the court to expand the protection of the statute “to prohibit employers from taking adverse action against employees whose spouses or significant others have engaged in statutorily protected activity against the employer.” The Eighth Circuit rejected such a construction, concluding that it “is neither supported by the plain language of Title VII nor necessary to protect third parties, such as spouses or significant others, from retaliation.” “Title VII already offers broad protection to such individuals by prohibiting employers from retaliating against employees for ‘assist[ing] or participat[ing] in any manner’ in a proceeding under Title VII. Accordingly, we hold that a

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plaintiff bringing a retaliation claim under Title VII must establish that []he personally engaged in the protected conduct.”5

A number of courts, however, have recognized third-party retaliation claims. For example, in De Medina v. Reinhardt, 444 F. Supp. 573, 580-81 (D.D.C. 1978), the court held that, “since tolerance of third-party reprisals would, no less than tolerance of direct reprisals, deter persons from exercising their protected rights under Title VII,” the legislative intent was to prohibit retaliation against third parties. In EEOC v. Nalbandian Sales, Inc., 36 F. Supp. 2d 1206, 1212 (E.D. Cal. 1998), the court held that to plead an actionable third-party retaliation claim under Title VII, a plaintiff must allege: (1) that a relative or friend was engaged in statutorily protected expression; (2) resulting adverse employment action; and (3) a causal link between the protected expression and the adverse action.

B. Adverse Action

1. Burlington Northern Standard

In Burlington Northern & Santa Fe Ry. Co. v. White, 126 S. Ct. 2405 (2006), the Supreme Court loosened the standard for determining "adverse action" in retaliation claims under Title VII. According to the Court, employees who bring retaliation claims under Title VII no longer must prove they suffered an "ultimate employment decision" or "materially adverse change in the terms and conditions of employment," such as a discharge, demotion, or loss of pay, in order to state a claim. Rather, the Court ruled that Title VII prohibits more subtle forms of retaliation, which can include, depending on the factual circumstances, a change in schedule or even the failure to invite an employee to lunch. Under this new standard, unlawful retaliation includes conduct that "might have dissuaded a reasonable worker from making or supporting a charge or discrimination."

The Court gave two examples to shed light on the new standard, one involving a schedule change, and the other a refusal to invite an employee to lunch. A schedule change might not matter to most employees, the Court explained, but it "may matter enormously to a young mother with school age children." Likewise, a supervisor's refusal to invite an employee to lunch is "normally trivial, a nonactionable petty slight." However, excluding an employee from a "weekly training lunch that contributes significantly to the employee's professional advancement" might well deter a reasonable employee from complaining. Thus, depending on the circumstances, a reasonable employee might consider these actions materially adverse. The Court did say, however, that "trivial harms" or "petty slights" would not give rise to retaliation claims.

5 See also Holt v. JTM Industries, 89 F.3d 1224, 1226 (5th Cir. 1996) (although protecting one spouse from retaliation for the other spouse’s protected complaint “might eliminate the risk that an employer will retaliate against an employee for their spouse's protected activities," court concluded such a holding would "contradict the plain language of the [ADEA] and will rarely be necessary to protect employee spouses from retaliation”); Fogelman v. Mercy Hosp., Inc., 283 F.3d 561 (3d Cir. 2002) (employee’s “perception theory of illegal retaliation – that he was fired because [the hospital] thought that he was engaged in protected activity, even if he actually was not – presents a valid legal claim”).

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While the Supreme Court's decision directly applies only to retaliation claims under Title VII, other federal courts and administrative agencies are guided by the Court's analysis in considering retaliation claims under other statutes. In Carmona-Rivera v. Puerto Rico, 464 F.3d 14 (1st Cir. 2006), the First Circuit stated that under the standard enunciated in BurlingtonNorthern, a delay in providing reasonable accommodations to an individual with a disability covered by the ADA may constitute an adverse action where the disabled person claims that the delay was in retaliation for seeking such accommodations. “While a delay in providing the accommodations needed to meet a disability may cause a significant injury or harm to a disabled person,” however, the court concluded that in the case before it, no such harm arose. Although the court acknowledged that the plaintiff may have experienced “inconvenience” resulting from the delays in providing her with accommodations, the employer did take steps “to meet her requests and did not stonewall her,” and there was “little indication that the actions of the defendants would have a chilling effect of deterring others from filing their own requests for a needed accommodation.” Because the plaintiff's requests “were ultimately approved and the needed changes were made,” the First Circuit court concluded that “[t]he system worked, although without the dispatch that [plaintiff] desired.” Accordingly, the court determined there was “no evidence in [the] record from which a reasonable jury could conclude that the delays [in providing plaintiff with reasonable accommodations] resulted from either intentional discrimination or retaliatory behavior.” Id.6

Although the Supreme Court's decision would appear to make it easier for plaintiffs to bring retaliation claims, some recent decisions indicate this may not always be the case. For example, the Eighth Circuit, in Devin v. Schwan's Home Serv., Inc., 491 F.3d 778 (8th Cir. 2007), ruled that alleged supervisory reprimands, denial of sales assistance of doubtful value, and an employer's asserted reluctance to discuss the employee's past harassment claims, even if true, would result only in "trivial harm" and not provide a basis for Title VII retaliation claims. In another case, the same court ruled that "transfers" from one employment location to another do not constitute a materially adverse action when the there is no change in benefits, job duties, job responsibilities or job prestige. The court also found the plaintiff's complaints about being given the cold shoulder by her supervisor and being deprived of mentoring given to other new lawyers to be trivial. See Higgins v. Gonzales, 481 F.3d 578 (8th Cir. 2007).7

6 See also Kessler v. Westchester County Dep’t of Social Services, 461 F.3d 199 (2d Cir. 2006) (applying Burlington Northern standard to claim under the ADEA); Darveau v. Detecon Inc., 515 F.3d 334 (4th Cir. 2008) (FLSA); Metzler v. Federal Home Loan Bank of Topeka, 464 F.3d 1164 (10th Cir. 2006) (FMLA). The Department of Labor also has applied Burlington Northern to OSHA’s whistleblowing provisions. See Hirst v. Southeast Airlines Inc., 2007 DOL Ad. Rev. Bd. LEXIS 7 (Dep’t of Labor Jan. 31, 2007). The Fifth Circuit applied the provisions of Burlington Northern to a case under Sarbanes-Oxley. See Allen v. Admin. Review Bd., 512 F.3d 468 (5th Cir. 2008); but see Bozeman v. Per-Se Techs., Inc., 456 F. Supp. 2d 1282 (N.D. Ga. 2006) (applying Burlington Northern to Title VII claim, but declining to use apply it to Sarbanes-Oxley). 7 See also McCoy v. City of Shreveport, 492 F.3d 551 (5th Cir. 2007) (relying on fact that Supreme Court limited holding in Burlington Northern to retaliation claims, Fifth Circuit held that to establish a discrimination claim under Title VII, the plaintiff still must show she was the victim of an “ultimate” employment action—such as hiring, discharge, granting leave, promotions or compensation).

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2. Adverse Action Against Former Employees

In Robinson v. Shell Oil Co., 519 U.S. 337 (1997), the Supreme Court held that in addition to protecting current employees, Title VII prohibits employers from retaliating against former employees. Thus, a plaintiff can challenge a retaliatory adverse action taken by a former employer. See Burlington Northern, 126 S. Ct. at 357. See also Berry v. Stevinson Chevrolet, 74 F.3d 980, 984, 986 (10th Cir. 1996) (finding actionable retaliation where employer filed false criminal charges against former employee who complained about discrimination). A provision limited to employment-related actions would not deter the many forms that effective retaliation can take. Hence, such a limited construction would fail to fully achieve the anti-retaliation provision's “primary purpose,” namely, “[m]aintaining unfettered access to statutory remedial mechanisms.” Robinson, 519 U.S. at 346.

In Passer v. American Chemical Society, 935 F.2d 322 (D.C. Cir. 1991), the D.C. Circuit held that a former employee could maintain an action under the ADEA's anti-retaliation provision. The court noted that the language of the statute, by its terms, barred retaliation only against “employees or applicants for employment.” The court ruled, nonetheless, that the statute must be read to apply to former employees because “to read the statute otherwise would be to deny protection to any person who has suffered discharge or termination due to unlawful discrimination.” The court emphasized that Congress “could not have intended such an absurd result.” Id. at 331

The ADA prohibits retaliation against “any individual” not merely “any employee” who has opposed discrimination based on disability or has participated in the charge process. 42 U.S.C. § 12203. Thus, a former employee may bring a claim for retaliation against an employer for having given the former employee bad references due to the fact that the former employee filed a charge of disability discrimination or lawsuit against the employer. See Shaver v. Indep. Stave Co., 350 F.3d 716, 723-25 (8th Cir. 2003) (reversing district court's grant of summary judgment in favor of employer on plaintiff's claim that former supervisor gave bad references to prospective employers because plaintiff had filed ADA suit against employer).

C. Causation

Once protected activity and adverse action are demonstrated, an employee must show a causal link between the protected activity and the employment action. See, e.g., McCann v. Tillmani, 526 F.3d 1370, 1376 (11th Cir. 2008); Contreras v. Suncast Corp., 237 F.3d 756, 765 (7th Cir. 2001). This involves a three-step process, much like the burden-shifting analysis in a discrimination suit brought under Title VII. See, e.g., McCann, 526 F.3d at 1376. First, the employee must raise an inference of causation, usually through showing the temporal proximity of the protected activity and the adverse action. Second, the employer must articulate a legitimate, nondiscriminatory reason for the adverse action. Third, if a legitimate reason is articulated, the employee must show that the employer’s reason is a pretext for the true discriminatory motive and that retaliation is a motivating factor in the adverse decision. In essence, the court determines whether or not the employer acted based upon a legitimate business reason.

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1. Knowledge of Protected Activity

“In order to establish the causation prong of a retaliation claim, the employee should demonstrate that the employer knew about the employee’s protected activity.” Manning v. Chevron Chem. Co., 332 F.3d 874, 883 (5th Cir. 2003); see also McCann v. Tillmani, 526 F.3d 1370, 1376 (11th Cir. 2008); Thomas v. City of Beaverton, 379 F.3d 802 (9th Cir. 2004) (employer's awareness of employees protected activity is important in establishing the causal link between that activity and the alleged retaliatory action).

2. Temporal Proximity

The closer the temporal proximity, the more likely the court is to infer causation. See Haynes v. Level 3 Communications LLC, 456 F.3d 1215 (10th Cir. 2006). For example, in Mickey v. Zeidler Tool and Die Co., 516 F.3d 516 (6th Cir. 2008), the plaintiff was discharge on the same day that the employer was informed that plaintiff had filed a charge with the EEOC. The district court granted the employer’s motion for summary judgment. In dismissing plaintiff’s retaliation claim, the district court had relied on Sixth Circuit precedent that temporal proximity, standing alone, is not enough to allow a reasonable juror to conclude that an employer would not have laid off an employee “but for” his filing the EEOC charge. The Sixth Circuit rejected this reasoning. Analyzing the issue more thoroughly than it had in previous cases, the court held that where an adverse employment action occurs very close in time after an employer learns of a protected activity, such temporal proximity between the events is significant enough to constitute evidence of a causal connection for the purposes of satisfying a prima facie case of retaliation. But where some time elapses between when the employer learns of a protected activity and the subsequent adverse employment action, the employee must couple temporal proximity with other evidence of retaliatory conduct to establish causality. The court’s reasoning for this distinction was basic: “if an employer immediately retaliates against an employee upon learning of his protected activity, the employee would be unable to couple temporal proximity with any such other evidence of retaliation, because the two actions happened consecutively, and little other than the protected activity could motivate the retaliation.” Id. at 525. But see Hervey v. County of Koochiching, 527 F.3d 711 (8th Cir. 2008) (more than a temporal connection is required to establish retaliation case); Arraleh v. County of Ramsey, 461 F.3d 967 (8th Cir. 2006) (a showing of temporal proximity alone is insufficient to prove pretext).

In Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 273-74 (2001), the Supreme Court stated that temporal proximity between the defendant's knowledge of the protected activity and an adverse employment action can constitute sufficient evidence of causality to establish a prima facie case, but only if the temporal proximity is "very close." The Supreme Court upheld the district court's grant of summary judgment for the defendant because the 20-month period between the defendant's knowledge of the protected activity and the adverse employment actions "suggested by itself, no causality at all." Id. at 274. See also Miller v. Automobile Club of New Mexico, Inc., 420 F.3d 1098 (10th Cir. 2005) (plaintiff failed to establish causal connection between complaints of sexual harassment and termination where she relied solely on the six month window between the two); Johnson-Romaker v. Kroger Ltd. P'ship One, 609 F. Supp. 2d 719 (N.D. Ohio 2009) (eight-month period insufficient to show temporal proximity).

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A close temporal proximity may be insufficient if other evidence is presented – such as a long history of discipline and warnings prior to the protected activity, or where the same decision maker made both favorable and negative decisions regarding the employee after the protected activity. See, e.g., Hardage v. CBS Broadcasting Inc., 427 F.3d 1177 (9th Cir. 2005) (because it was undisputed that plaintiff was fired after failing to meet goals set for 30-day probation period and otherwise did not complete his job duties, plaintiff could not prove that the employer retaliated against him by putting him on probation or giving him a negative evaluation, noting that “undeserved performance ratings, if proven, would constitute” adverse actions).8

In Addis v. Dep't of Labor, 575 F.3d 688 (7th Cir. 2009), the Seventh Circuit upheld the ALJ’s decision to dismiss plaintiff’s complaint under the Energy Reorganization Act, 42 U.S.C.S. § 5851(b). The evidence established that plaintiff was discharged 12 days after making a safety complaint. However, the court held that the temporal proximity plaintiff cited to support a finding of retaliation was mitigated by the fact that the time frame was created by plaintiff’s own resignation over a disagreement with her supervisor; this disagreement provided both the impetus for the termination of her employment and the impetus for her safety complaint. Similarly, the court concluded that both the employer’s divergence from its normal procedures for handling safety complaints and the discussion of plaintiff’s complaint during plant management's meeting to determine her status could easily be attributed to the unique situation her resignation and subsequent complaint presented. The appeals court ultimately concluded that the ALJ was entitled on the record before him to find that while management was continually frustrated by plaintiff's performance, her angry resignation was the straw that broke the camel's back, prompting the company to part ways with her.

3. Liability for Co-Worker Retaliation

An issue raised frequently is whether the employee may recover for conduct by a co-worker, as opposed to a supervisor or manager. Courts generally have imputed such retaliatory acts to the employer in two situations: (1) if the employer knew or should have known of the discriminatory conduct and failed to take appropriate measures; and (2) the harassing employee acted within the scope of employment, was aided by the relationship with the employer, the victim relied on the employee’s apparent authority.

Employers face liability for co-worker harassment or retaliation if the employer knew of the conduct and failed to address it. For example, in Noviello v. City of Boston, 398 F.3d 76 (1st.Cir. 2005), the First Circuit found an employer liable for harassment by a meter maid’s co-workers after she complained about sexual harassment by a peer. In that case, her coworkers ostracized her, called her derogatory names, refused to pick her up from her route during a snow storm and, on one occasion, drove away while she was trying to enter the department transport van. Similarly, in Richardson v. N.Y. State Dep’t of Correctional Service, 180 F.3d 426, 444-46 (2d Cir. 1999), the plaintiff, a former prison employee, suffered a racially hostile work environment and retaliation after complaining to supervisors about discrimination and filing an EEOC charge. The employer knew of the harassment and did little to mitigate it, telling plaintiff

8 See generally Breeden, 532 U.S. at 272 (“Employers need not suspend previously planned transfers upon discovering that a Title VII suit has been filed, and their proceeding along lines previously determined, is no evidence whatsoever of causality.”).

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it might be difficult to “change [her co-workers’] attitudes.” Id. at 435. The Court imputed this harassment to the employer since “unchecked retaliatory coworker harassment, if sufficiently severe, may constitute adverse employment action.” Id. at 446.

In Hawkins v. Anheuser-Busch, Inc., 517 F.3d 321, 345 (6th Cir. 2008), the Sixth Circuit recognized claims for co-worker retaliation. In Hawkins, a co-worker set fire to the plaintiff’s car and threatened her life after she made a complaint of sexual harassment against him. The court determined that an employer should be liable for a co-worker’s retaliatory acts if: (1) the coworker’s retaliatory conduct is sufficiently severe so as to dissuade a reasonable worker from making or supporting a charge of discrimination; (2) supervisors or members of management have actual or constructive knowledge of the co-worker’s retaliatory behavior; and (3) supervisors or members of management have condoned, tolerated, or encouraged the acts of retaliation, or have responded to the plaintiff’s complaints so inadequately that the response manifests indifference or unreasonableness under the circumstances. Applying this standard, the court denied the defendant’s motion for summary judgment on the grounds that a reasonable jury could find the employer’s failure to investigate the retaliatory acts to be both indifferent and unreasonable. But see Griffin v. Citgo Petroleum Corp., 2008 U.S. Dist. LEXIS 101533, at *25-26 (W.D. La. Oct. 28, 2008) (court held that “without deciding whether this Circuit would recognize a co-worker hostile environment retaliation claim, … there is a complete lack of evidence in this case that Citgo either knew, orchestrated or condoned the alleged co-worker retaliation).

In determining whether adverse actions were taken in reaction to protected activity, the court focuses on the statements and actions of the final decision maker. See Gee v. Principi, 289 F.3d 342, 346 (5th Cir. 2002). Nevertheless, despite a focus on the ultimate decisionmaker, a plaintiff can make out a prima facie case by showing that other employees, with discriminatory motives, “had influence or leverage over the official decisionmaker.” Id.; see also Long v. Eastfield Collage, 88 F.3d 300, 307 (5th Cir. 1996) (noting that if the final decisionmaker serves as the “cat's paw” of those acting with retaliatory motives, the causal link remains intact).

4. Legitimate, Nondiscriminatory Reason and Pretext

In retaliation claims, the employee is not obligated to show that the employer acted only with a retaliatory motive. See, e.g., Hall v. Bodine Elec. Co., 276 F.3d 354, 357-58 (7th Cir. 2002). Instead, employees must establish that the employer would not have taken the same adverse employment action but for the protected activity in which the employee engaged. SeeBergene v. Salt River Project Agric. Improvement & Power Dist., 272 F.3d 1136, 1141 (9th Cir. 2001). Thus, employers can defeat a retaliation claim by presenting legitimate, non-discriminatory reasons for taking that action as long as the employee is unable to show that the reason provided is pretextual. See Crawford v. Chao, 2005 U.S. App. LEXIS 26935 (11th Cir. Dec. 7, 2005). The claimant must also prove that retaliation was the “determinative” factor in the decision, and not just a “motivating” factor. See Van Horn v. Best Buy Stores LP, 526 F.3d 1144, 1148 (8th Cir. 2008); Fye v. Okla. Corp. Comm'n, 516 F.3d 1217, 1225 (10th Cir. 2008).

In Hamilton v. GE, 556 F.3d 428 (6th Cir. 2009), the Sixth Circuit held that when an employer waits for a legal, legitimate reason to fortuitously materialize, and then uses it to cover

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up his true, long-standing motivations for firing the employee, the employer's actions constitute the very definition of pretext.

III. STATUTORY PROTECTIONS AGAINST RETALIATION

A. Federal Statutes

1. Title VII of the Civil Rights Act of 1964

One of the principle dangers of a Title VII retaliation claim is that the courts do not require an actual finding of discrimination in order to find retaliation in violation of Title VII. See Lipphardt v. Durango Steakhouse, 267 F.3d 1183 (11th Cir. 2001) (although events following ill-fated romantic relationship were not actionable sexual harassment, plaintiff’s good-faith reasonable belief that her treatment was harassment provided basis for successful retaliation verdict); but see Ianetta v. Putnam Invest., Inc., 183 F. Supp. 2d 415, 423 (D. Mass. 2002) (dismissing retaliation claim and holding that plaintiff’s e-mail complaining of harassment on the basis of sexual orientation was not protected activity because sexual orientation is not protected under Title VII); Lightner v. City of Wilmington, 545 F.3d 260 (4th Cir. 2008) (plaintiff’s allegation that the “real reason” for adverse action was Internal Affairs complaint unrelated to discrimination could not support a claim under Title VII).

2. The Americans with Disabilities Act

The Americans with Disabilities Act (“ADA”) provides that “no person shall discriminate against any individual because such individual has opposed any act or practice made unlawful by [the ADA] or because such individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding or hearing under [the ADA].” 42 U.S.C. § 12203(a). Courts often follow Title VII jurisprudence in assessing ADA retaliation claims. See, e.g., Stewart v. Happy Herman’s Cheshire Bridge, Inc., 117 F.3d 1278, 1287 (11th Cir. 1997) (“we assess ADA retaliation claims under the same framework we employ for retaliation claims arising under Title VII”); Carmona-Rivera v. Commonwealth of Puerto Rico,464 F.3d 14, 19 (1st Cir. 2006) (applying Burlington Northern adverse action test to ADA retaliation claim).

A plaintiff need not actually be disabled to bring a successful retaliation claim under the ADA. See, e.g., Freadman v. Metro. Prop. and Casualty Ins. Co., 484 F.3d 91, 106 (1st Cir. 2007) (“ADA plaintiff may assert a claim for retaliation even if she fails to succeed on a disability claim”); Mondzelewski v. Pathmark Stores, Inc., 162 F.3d 778, 786 (3rd Cir. 1998) (person’s status as a qualified individual with a disability not relevant in assessing person’s claim for retaliation under the ADA); Krouse v. American Sterilizer Co., 126 F.3d 494, 498 (3rd Cir. 1997) (allowing plaintiff’s ADA retaliation claim to go forward despite fact that plaintiff was not a “qualified individual with a disability” under the ADA). Thus, a plaintiff engages in protected activity simply by opposing a practice he or she reasonably believes to be unlawful. See Selenke v. Medical Imaging of Colo., 248 F.3d 1249, 1264 (10th Cir. 2001); cf. Standard v. A.B.E.L. Serv., Inc., 161 F.3d 1318, 1328 (11th Cir. 1998) (activity not protected under ADA where court found plaintiff did not have objectively reasonable belief that he was disabled).

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3. The Age Discrimination in Employment Act

An individual engages in protected activity under the Age Discrimination Employment Act (“ADEA”) by “oppos[ing] any practice made unlawful by this section” or “participat[ing] in any manner in an investigation, proceeding, or litigation under this chapter.” 29 U.S.C. § 623(d). Courts often interpret the ADEA broadly to find that an individual engaged in protected conduct. See, e.g., Kessler, 461 F.3d 199 (applying Burlington Northern standard to ADEA claim). However, the ADEA does not extend protection against retaliation to a passive observer of a spouse’s or co-worker’s protected activity. See Holt v. JTM Indus., 89 F.3d 1224, 1226-27 (5th Cir. 1996); but see Chapin v. Nationwide Mutual Ins. Co., 2007 U.S. Dist. LEXIS 21176 (S.D. Ohio March 26, 2007) (listing “expressing support for coworkers who have filed charges” as a protected activity).

In Gomez-Perez v. Potter, 128 S. Ct. 1931 (2008), the Supreme Court held that the prohibitory language of 29 U.S.C. § 633a(a) allowed for a federal-section retaliation claim, even though the federal section provision included no express language prohibiting retaliation. Following the reasoning of Sullivan v. Little Hunting Park, Inc., 396 U.S. 229 (1969) and Jackson v. Birmingham Bd. of Ed, 544 U.S. 167 (2005), the Court interpreted the ADEA federal-sector provision’s prohibition of “discrimination based on age” as likewise prohibiting retaliation. In doing so, the Court rejected the respondent’s reliance on the presence of a provision in the ADEA specifically prohibiting retaliation against individuals who complain about age discrimination in the private sector and the absence of a similar provision specifically prohibiting retaliation against individuals who complain about age discrimination in federal employment.

4. Fair Labor Standards Act

The Fair Labor Standards Act (“FLSA”) contains an express anti-retaliation clause under which it is unlawful “to discharge or any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this chapter, or has testified or is about to testify in any such proceeding, or has served or is about to serve on an industry committee.” 29 U.S.C. § 215(a)(3).

The federal courts remain sharply divided as to what constitutes protected activity under the FLSA. The majority of circuits interpret the statute to protect employees’ internal complaints and do not require a formal complaint to a government agencies. For example, in Darveau v. Detecon Inc., 515 F.3d 334 (4th Cir. 2008), the Fourth Circuit held that a former employee could pursue a retaliation claim against his former employer based on the former employer filing a lawsuit against him for fraud and breach of contract two weeks after he had sued for overtime wages. The court concluded that a plaintiff “need only allege that his employer retaliated against him by engaging in an action that would have been materially adverse to a reasonable employee’ because the employer’s actions could well dissuade a reasonable worker from making or supporting a charge of discrimination.” Id. at 343. (internal citation omitted). See Lambert v. Ackerly, 180 F.3d 997 (9th Cir. 1999) (anti-retaliation clause of Fair Labor Standards Act stating that it is unlawful to retaliate against an employee who has “filed any complaint or instituted or

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caused to be instituted any proceeding under or related to this chapter, or has testified or is about to testify in any such proceeding” protects employees who make informal complaints to employer). But see Lambert v. Genessee Hosp., Inc., 10 F.3d 46, 55 (2nd Cir. 1993) (concluding plain language of the FLSA limited the cause of action to retaliation for filing formal complaints); Ball v. Memphis BBQ Co., Inc., 228 F.3d 360, 364 (4th Cir. 2000) (FLSA anti-retaliation provision was intended to protect the integrity of the judicial process, and informal complaints to an employer are not protected activity).

5. Family and Medical Leave Act

The Family and Medical Leave Act (“FMLA”), which entitles a covered employee to take up to twelve weeks of leave in a twelve-month period for the birth or adoption of a child or the serious health condition of the employee or the employee’s child, spouse, or parent, expressly prohibits retaliation. See 29 U.S.C. §§ 2612(a)(1), 2615. Specifically, the FMLA prohibits an employer from interfering with an employee’s attempt to exercise her FMLA rights or retaliating against an employee for opposing practices made unlawful by the FMLA. See 29 U.S.C. § 2615. If an employer engages in retaliation in violation of the FMLA, the employee may sue for damages or equitable relief. See 29 U.S.C. § 2617(a)(2).

FMLA retaliation claims address adverse actions taken in response to the plaintiff’s use of or request for medical leave, not actions motivated by the underlying medical condition itself. See Chandler v. Specialty Tires of America, Inc., 283 F.3d 818, 825 (6th Cir. 2002). Thus, FMLA retaliation claims turn on the employer’s specific motive for discharging the plaintiff. In Chandler, the Sixth Circuit upheld a jury verdict for the plaintiff on her retaliatory discharge claim. The plaintiff intentionally overdosed on pills and was hospitalized. After she explained the situation, the plant manager agreed to place her on paid leave. However, when the plaintiff returned to work, her immediate supervisor decided that the overdose demonstrated irresponsible behavior, and he terminated her a few days later. The Court noted that the FMLA protects employees from adverse action as a result of taking medical leave, but unlike the ADA, it does not protect an employee from adverse action motivated by the underlying medical condition itself. However, the court upheld the jury verdict for the plaintiff, noting that based on the temporal proximity of the discharge and the plaintiff’s prior exemplary reviews, it was reasonable to infer that the plaintiff was fired for taking leave, not for overdosing on pills. Id. at 826. See also Navarro v. Pfizer Corp., 261 F.3d 90, 101 (1st Cir. 2001).

In Bryant v. Dollar General Corp., 538 F.3d 394 (6th Cir. 2008), the plaintiff, Martha Bryant, prevailed in a jury trial on her claim that Dollar General fired her in retaliation for her exercise of leave guaranteed by the FMLA. The legal issue on appeal was whether the FMLA prohibited retaliation against Bryant because of her exercise of FMLA leave. The employer argued that 29 U.S.C. § 2615(a)(2) spoke only of retaliation for “opposing any practice made unlawful” by the FMLA, and thus did not encompass Bryant’s claim that she was fired for taking FMLA leave. The Sixth Circuit rejected this view. According to the court, interpreting section 2615(a)(2)’s ban on discrimination in a manner that would permit employers to fire employees for exercising FMLA leave would undoubtedly run contrary to Congress’ purpose in passing the FMLA. The court concluded that the FMLA and its implementing regulations prohibit employers

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from taking adverse employment actions against employees based on an employee’s exercise of FMLA leave.9

6. Employee Retirement Income Security Act

The Employee Retirement Income Security Act (“ERISA”) prohibits employers from discharging, fining, suspending, expelling, disciplining, or discriminating against plan participants or beneficiaries for exercising or attempting to exercise their rights under ERISA or ERISA plans, or for planning to testify or otherwise taking part in any ERISA-related inquiries or proceedings. 29 U.S.C. § 1140. ERISA § 510 provides a safeguard against employer manipulation of the employment relationship in order to interfere with rights to employee benefits. Significantly, employee benefits plans not governed by ERISA cannot serve as the basis for a retaliation claim under ERISA, even if an employee is retaliated against for what the employee believes to be a violation of ERISA. See Bilow v. Much Shelist Freed Denenberg Ament & Rubenstein, 227 F.3d 882, 892 (7th Cir. 2001) (“ERISA plan is a condition precedent to an ERISA retaliation claim”).

ERISA § 510 protects plaintiffs who have received already-accrued benefits. A plaintiff need only prove improper efforts to interfere with rights under ERISA, not actual interference, so the plaintiff’s receipt of ERISA benefits does not preclude an ERISA retaliation claim. See Majewski v. Automatic Data Processing, Inc., 274 F.3d 1106 (6th Cir. 2001) (although plaintiff failed to establish a prima facie case of interference, § 510 does protect the right to attain future entitlements to benefits and so a plaintiff’s receipt of all as-yet accrued benefits does not moot a § 510 claim).

A plaintiff must show that the alleged discrimination was intended either (1) to retaliate against the plaintiff for the exercise of a right, or (2) to interfere with the attainment of an entitled (i.e., vested) right. A plaintiff must show that the employer acted with the specific intent to violate the statute and to retaliate against the employee or interfere with an employee’s ERISA rights. See Kouvchinov v. Parametric Tech. Corp., 537 F.3d 62, 67 (1st Cir. 2008) (holding that specific intent is necessary whether the discrimination complained of is preemptive (i.e.,interference) or retaliation). Thus motivation is an element of an ERISA § 510 claim. There is no cause of action where the loss of benefits was a “mere consequence of, but not a motivating factor behind, a termination of employment,” Dister v. Cont’l Group, Inc., 859 F.2d 1108, 1111 (2d Cir. 1988), or where there was merely an overlap – possibly a coincidental one – of an adverse job action and a recent claim for benefits. Kouvchinov, 537 F.3d at 67.

9 In Bryson v. Regis Corp., 498 F.3d 561 (6th Cir. 2007), the Sixth Circuit recognized two distinct theories of wrongdoing under the FMLA. The “entitlement” or “interference” theory makes it unlawful for employers to interfere with or deny an employee’s exercise of her FMLA rights, and requires the employer to restore the employee to the same or an equivalent position upon the employee’s return. The “retaliation” or “discrimination” theory, on the other hand, prohibits an employer from discharging or discriminating against an employee for opposing any practice made unlawful by the FMLA. See alsoErdman v. Nationwide Ins. Co., --- F.3d ---, 2009 U.S. App. LEXIS 20979, at *23 (3rd Cir. Sept. 23, 2009) (court held that discharging plaintiff before she could take requested FMLA leave may constitute interference as well as retaliation under the FMLA; to held otherwise, the court noted, “would perversely allow an employer to limit an FMLA plaintiff’s theories of recovery by preemptively firing her”).

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Activity protected by ERISA includes: (a) an employee’s exercise of her rights under an ERISA-governed benefit plan; and (b) an employee’s planning to testify or otherwise taking part in any ERISA-related inquiries or proceedings (sometimes referred to as “the whistleblower provision”). 29 U.S.C. § 1140. This means that an employer may not terminate an employee for past use of company health care benefits, for example, or to avoid paying additional benefits to which the employee would be entitled if she continued in the job. See Conkwright v. Westinghouse Elec. Corp., 933 F.2d 231-37 (4th Cir. 1991).

“Discrimination” is not defined by the statute. The circuit courts have come to different conclusions about whether to interpret “discrimination” the same way under ERISA as under other employment discrimination statutes, with some circuits considering “discrimination” to mean any adverse action, and others declining to extend “discrimination” to failure to hire (which is adverse action under statutes like Title VII and the ADEA). The Sixth Circuit has chosen to interpret “discrimination” to “have the same basic meaning” as discrimination under statutes like Title VII and the ADEA and thus to include “any adverse action.” Mattei v. Mattei,126 F.3d 794, 806 (6th Cir. 1997). Similarly, the Seventh Circuit has recognized that the purpose of § 510 is, in part, to prevent employers from “harassing” their employees to intimidate them and thereby prevent them from exercising their rights under ERISA. Dewitt v. Proctor Hosp., 517 F.3d 944, 949 (7th Cir. 2008). See also Heimann v. Nat’l Elevator Ind. Pension Fund,187 F.3d 493, 505 (5th Cir. 1999) (interpreting ERISA § 510 in the same way as other anti-discrimination statutes). However, the Third Circuit refused to extend ERISA discrimination to include an employer’s failure to rehire previously laid-off workers who had no right or expectation of rehire. Becker v. Mack Trucks, 281 F.3d 372, 380 (3d Cir. 2002). The court in Becker, while recognizing that ERISA discrimination covers conduct short of termination that makes an employee’s life difficult, held that ERISA discrimination does not extend to any actions against a “potential employee” and thus does not include failure to hire or rehire. Id. at 382. The Ninth Circuit similarly has declined to extend ERISA discrimination to failure to hire in a situation where a business terminated employment under the provisions of a collective bargaining agreement and the purchaser of the business refused to hire any of the employees because they refused to accept a reduction of unaccrued employee benefits. See West v. Greyhound Corp., 813 F.2d 951, 955 (9th Cir. 1987).

7. Section 1981 of the Civil Rights Act of 1886

Section 1981 states that “all persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts … as is enjoyed by white citizens.” 42 U.S.C. § 1981(a). The term make and enforce contracts includes “the making, performance, modification, and termination of contracts.” 42 U.S.C. § 1981(b).

Retaliation claims brought under § 1981 are analyzed the same as those raised pursuant to Title VII. See Davis v. Dallas Area Rapid Trans., 383 F.3d 309, 319 (5th Cir. 2004). Thus, to present a prima facie case of retaliation under § 1981, a plaintiff must show that: (1) he engaged in protected activity; (2) he was subjected to an adverse employment action; and (3) a causal link exists between the protected activity and the adverse employment action. See Foley v. Univ. of

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Houston Sys., 324 F.3d 310, 316 (5th Cir. 2003) (the elements for establishing a prima face case of retaliation under § 1981 are identical to those that must be established under Title VII).

In 2008, the Supreme Court resolved a split in the circuit courts when it held that § 1981 protects against both direct racial discrimination and retaliation based on complaints of discrimination. See CBOCS West, Inc. v. Humphries, 128 S. Ct. 1951 (2008).

8. False Claims Act

The False Claims Act (“FCA”), prohibits fraud upon the government by imposing civil penalties upon any person who, inter alia, (1) knowingly presents a false or fraudulent claim for payment or approval to the federal government; (2) knowingly makes or uses a false record or statement in order to get a false or fraudulent claim paid by the government; or (3) conspires to defraud the government by getting a false or fraudulent claim allowed or paid. 31 U.S.C. § 3729(a). It also protects whistleblowers who investigate or report information in furtherance of potential suits under the Act from being discharged or subjected to other retaliation by their employers. Congress amended the FCA in 1986 to protect whistleblowers from discharge and other adverse action because of actions in furtherance of potential suits under the FCA. If an employer discharges, demotes, suspends, threatens, and harasses, or otherwise retaliates against an employee because the employee investigates and/or reports fraud against the federal government that employee can bring a lawsuit against the employer for retaliation. The law provides that the employee “shall be entitled to all relief necessary to make the employee whole.” A successful plaintiff is entitled to reinstatement (if terminated), double the amount of back pay plus interest on the original back pay, special damages, and attorney’s fees. 31 U.S.C. § 3730(h).

A whistleblower in an FCA retaliation case must prove that: (1) the employee engaged in protected activity; (2) the employer took adverse action against the employee; and (3) the adverse action was motivated at least in part by the protected activity. See United States v. BWXT Y-12, L.L.C., 525 F.3d 439 (6th Cir. 2008). An employee is not required to show that his employer actually made false or fraudulent claims for payment to show that he or she was engaged in protected activity under FCA. See McKenzie v. Bellsouth Telecomms., Inc., 123 F.3d 935, 944 (6th Cir. 1997) (plaintiff alleging retaliation under the anti-retaliation provision of the False Claims Act must only allege activities that would have given the defendant reason to believe that the plaintiff was contemplating a qui tam action under the FCA). See also Robertson v. Bell Helicopter Textron, Inc., 32 F.3d 948 (5th Cir. 1994) (Fifth Circuit held that "internal whistleblowers" protected under FCA). However, the FCA “provides relief only if the whistleblower can show by a preponderance of the evidence that the employer's retaliatory actions resulted ‘because’ of the whistleblower's participation in a protected activity.” McKenzie, 123 F.3d at 944 (citation omitted).

9. Fraud Enforcement and Recovery Act of 2009

On May 21, 2009, President Obama signed into law the Fraud Enforcement and Recovery Act of 2009 (“FERA”). FERA clarifies that the False Claims Act, 31 U.S.C. § 3729 (“FCA”), extends to the Troubled Asset Relief Program (“TARP”) and the American Recovery

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and Reinvestment Act (“ARRA”). FERA not only significantly expands the potential liability of federal contractors and companies and institutions receiving federal rescue funds, but it also expands the protection of whistleblowers against retaliation for making complaints about illegal activity under TARP and ARRA.

Retaliation claims under the FCA, which had been limited to claims by employees, are now available to contractors and agents who claim they were retaliated against for reporting fraud. The FCA, as amended by FERA, now defines “retaliation” to include any adverse action taken against an employee, contractor or agent because of that person’s “efforts to stop” a violation of the FCA. In particular, FERA provides relief from retaliatory actions for employees, contractors, and agents “discharged, demoted, suspended, threatened, harassed, or in any other manner discriminated against” because of reporting violations. FERA defines relief available to whistleblowers to include reinstatement with the same seniority status as the employee would have had, and two times the amount of backpay, interest, and compensation for any special damages.

10. Sarbanes-Oxley Act of 2002

The Sarbanes-Oxley Act of 2002 (“SOX”) contains civil and criminal anti-retaliation provisions to protect whistleblowers, employees who provide information and/or assist investigation into an employer’s violation of the Act, Securities and Exchange Commission regulations, and securities fraud. See 18 U.S.C. §§ 1513(e), 1514A(a). The definition of "employee" is broad under the statute, and generally includes present and former workers, supervisors, managers, officers, and even independent contractors. Former employees are protected when their protected activity occurs during the course of their employment. SOX's protection of independent contractors depends on the degree to which the publicly traded company exerts control over the contractor's work.

SOX whistleblower provisions provide for a civil cause of action and apply to publicly traded companies that are subject to the registration or reporting requirements of the Securities Exchange Act.10 The whistleblower protections extend to private companies that serve as agents or contractors of publicly traded companies, and may also cover subsidiaries. See Morefield v. Exelon Servs., Inc., 2004-SOX-2 (DOL ALJ Jan. 28, 2004) (ALJ ruled that employees of non-public subsidiaries of public corporations are covered by the whistleblowing protections of SOX). Subsidiaries of public companies may be held liable if, for example, they are mere instrumentalities of the parent company, share common management and operations with the parent company, or are agents of the parent company in retaliating against a whistleblower.11 In

10 The federal courts disagree whether SOX applies outside the borders of the United States. The First Circuit ruled that SOX does not apply to a foreign employee working abroad for the foreign subsidiary of a publicly-traded American company. Carnero v. Boston Science Corp., 433 F.3d 1 (1st Cir. 2006). However, a district court ruled that an American citizen working in France for an American subsidiary had a cause of action under SOX, because the decision to demote her was made in the United States. See O’Mahony v. Accenture Ltd., 537 F. Supp. 2d 506 (S.D.N.Y. 2008). 11 See Kalkunte v. DVI Financial Services, Inc., ARB Nos. 05-139, 05-140, ALJ No. 2004-SOX-056 (holding both publicly-traded and privately-held companies were liable for retaliation under SOX where “fact-intensive analysis” showed privately-held company was agent of publicly-traded company).

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addition, the law assigns liability not only to companies, but also to the individuals who have spearheaded the retaliation against a complaining employee.

To state a claim for retaliation under SOX, the plaintiff must establish that: (1) he engaged in protected activity; (2) the employer knew of the protected activity; (3) he suffered an unfavorable personnel action; and (4) circumstances existed to suggest that the protected activity was a contributing factor in the unfavorable action. Collins v. Beazer Homes USA, Inc., 334 F. Supp.2d 1365, 1375 (N.D. Ga. 2004). In Collins, the court found that the plaintiff had sufficient evidence to defeat defendant’s motion for summary judgment. The plaintiff complained to various executives that she suspected “kickbacks,” “corruption,” and a “cover-up” at her office and was subsequently terminated. Id. at 1370-71. The court held that though her complaints lacked specificity, they nonetheless alleged enough misconduct to constitute protected activity. The court further held that termination fourteen days following a complaint is sufficient temporal proximity to find causation of retaliation.

An employee engages in "protected activity" when he or she complains — internally or to regulators, and maybe even to the media — that the company has violated a federal rule or law relating to fraud on shareholders. Significantly, an employee's complaint about the company's violations of its own internal policies and ethical standards, or even its failure to follow GAAP, does not fall under the SOX whistleblower protections. At the heart of protected allegations is that the conduct violated the law and would have a negative impact on shareholders and investors. See Allen v. Admin. Review Bd., 514 F.3d 468 (5th Cir. 2008) (holding that a plaintiff seeking to show that she engaged in protected activity must establish that she “definitively and specifically” complained of unlawful conduct prohibited by SOX – discussing violation concerns with CFO of company found insufficient to “definitively and specifically” allege fraud); see also Wengender v. Robert Half Int’l Inc., 2005-SOX-59 (Dep’t of Labor Mar. 30, 2006) (“Fraud is an integral element of a SOX claim, which necessarily includes an implicit element of deceit that would impact shareholders or investors.”) (citation omitted).

In Day v. Staples, Inc., 555 F.3d 42 (1st Cir. 2009), the First Circuit clarified the standard for assessing whether the complainant reasonably believed the conduct at issue to be a violation of SOX or other securities laws and regulations. The court explained that the standard requires both subjective and objective reasonableness and ultimately found that plaintiff did not have the requisite objectively reasonable belief that the employer had violated the law. For an allegation of a violation to be objectively reasonable, according to the court, it need not be an actual violation of the law or specify the law violated, but it must at least track the basic elements of a law specified in SOX. Here, the court found that plaintiff’s allegations did not include important elements of securities fraud, including intentional and material misrepresentation; instead, they amounted to allegations regarding inefficiency and the failure to maximize shareholder profits, which are not within the protections afforded by SOX. As to claims of accounting irregularities and violations of General Accounting Principles, the court found that “[c]laims that there has been accounting fraud thus require evidence beyond a belief in a mere accounting irregularity,” and that plaintiff had failed to even allege an accounting irregularity. Finally, the court found that, even if plaintiff’s beliefs regarding violations had been objectively reasonable at the outset, they ceased to be so once the company had investigated and explained the challenged practices and assured plaintiff that no fraud was being committed.

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In Van Asdale v. International Game Technology, 2009 U.S. App. LEXIS 18037 (9th Cir. Aug. 13, 2009), the Ninth Circuit reversed summary judgment for the defendant and held that the plaintiffs, attorneys for the defendant, had raised a genuine issue of material fact as to whether they were discharged in violation of the anti-retaliation provisions of SOX. The plaintiffs alleged that representatives of the defendant, the target company in a merger, failed to disclose the existence of a letter from counsel that potentially invalidated a key patent that was a primary reason for the merger. Before addressing the merits, the court held that SOX did not prevent attorneys from proceeding with their claims even if it meant disclosing attorney-client privileged information. Strictly construing the statute, which authorizes any “person” to file a complaint alleging retaliation, the court concluded nothing in SOX indicated that in-house attorneys were not protected from retaliation. In addition, the court stated that the trial court could utilize the “equitable measures at its disposal” to minimize the possibility of harmful disclosures of privileged communication.

Turning to the merits of the case, the Ninth Circuit concluded that plaintiffs’ version of events was sufficient to raise an issue of possible shareholder fraud in connection with the merger. According to the court, to obtain protection against retaliation under SOX, an employee’s complaint or communication must “definitely and specifically” relate to one of the categories of fraud identified in SOX. The absence of the words “fraud” or “fraud on shareholders” in plaintiffs’ conversations with management was not determinative, the court found. Instead, all that Section 1514A of SOX requires is that the conversations as alleged “definitively and specifically” related to shareholder fraud. The court also held that the plaintiffs did not have to prove the existence of fraud; only that they truly believed there should be an investigation into potential fraud.

To ultimately prevail in a SOX retaliation case, the complainant must demonstrate by a preponderance of the evidence that protected activity was a contributing factor in the unfavorable action alleged in the complaint. 29 CFR § 1980.109(a). Thus, to shift the burden of proof to the defendant, something more than a “prima facie showing” is required. Collins v. Beazer Homes USA, Inc., 334 F. Supp.2d 1365, 1375 (N.D. Ga. 2004). Once the employee meets that burden, the burden shifts to the employer—not, as under Title VII, merely to articulate a nondiscriminatory reason for its conduct, but to prove, “by clear and convincing evidence, that it would have taken the same unfavorable personnel action in the absence of the complainant’s protected behavior or conduct.” 29 CFR § 1980.104(c); see also Allen v. Admin. Review Bd., 514 F.3d 468 (5th Cir. 2008) (if employee establishes a prima facie SOX whistleblower claim, employer may avoid liability by proving by “clear and convincing evidence” that it “would have taken the same unfavorable personnel action in the absence of that [protected] behavior”).

11. Occupational Safety and Health Act

The Occupational Health and Safety Act, (the "Act") provides that:

No person shall discharge or in any manner discriminate against an employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this Act or has testified or is about to

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testify in any such proceeding or because of the exercise by such employee on behalf of himself or others of any right afforded by this Act.

29 U.S.C. § 660(c)(1).

Unlike SOX and the False Claims Act, the whistleblower protections of the Act are somewhat limited in nature. Although an employee who believes he has been retaliated against in violation of the Act may file a complaint with the Department of Labor, the Department has discretion as to whether or not to file a complaint in federal district court on behalf of the employee for reinstatement and back-pay. The employee does not have a private right of action to sue in federal court.

12. The McCaskill Amendment to the American Recovery and Reinvestment Act of 2009 (“ARRA”)

Section 1553 of the American Recovery and Reinvestment Act of 2009 (referred to as the “McCaskill Amendment”), provides extensive whistleblower protections to ensure that the employees of private contractors and state and local governments that receive stimulus funds are free to report fraud, waste and other violations of the ARRA without fear of reprisal. The McCaskill amendment states that potential whistleblowers cannot be terminated, demoted, or “otherwise discriminated against” by covered employers as reprisal for the employee’s protected disclosures.

The burden of proof under Section 1553 only requires that a plaintiff introduce sufficient evidence to demonstrate that their disclosure was a “contributing factor” to the reprisal. The Amendment allows for the use of circumstantial evidence, including evidence that the employer knew about the disclosure or evidence that the reprisal occurred so soon after the disclosure that a “reasonable person” would conclude that the disclosure was a “contributing factor” in the adverse action. The employer, however, has a higher burden of proof to avoid liability and must demonstrate “clear and convincing” evidence that they would have taken the same action even if the employee had not made the disclosure.

13. Energy Reorganization Act

The Energy Reorganization Act (“ERA”), provides strong protections for contractors and employees who provide information about, or participate in investigations relating to, what they believe to be violations of nuclear safety laws and standards. See 42 U.S.C. § 5851. The ERA protects an employee from being discriminated against for filing a complaint about plant safety. Discrimination is defined as an "unfavorable personnel action," 42 U.S.C.S. § 5851(b)(3), in retaliation for the employee's complaints about nuclear safety

The definition of “employee” is broad under the statute, and generally includes anyone who is employed by the licensee or its contractors or subcontractors. Even former employees can be protected where the employer’s post-employment actions, such as providing a negative job reference, are related to or arise out of the former employment relationship. Depending on

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the extent of control that a covered employer exercises over a worker, the statue might protect the employee despite the fact that the employer calls him or her an “independent contractor.”

There are three central elements to an ERA whistleblower claim: (1) the employee is engaged in protected activity; (2) the employer took adverse employment action against the employee; and (3) the adverse employment action against the employee was caused at least in part by the protected activity. An employee engages in “protected activity” when he or she raises concerns - internally or to regulators, and maybe even to the media - about issues of nuclear safety. An employee is protected only when complaining about practices that he or she reasonably believes to implicate nuclear safety, and not when complaining about myriad other issues. While the employee must reasonably believe the employer is engaged in conduct that will negatively impact nuclear safety, he or she need not be right in that belief. As long as the employee's belief is reasonable, the employer cannot retaliate against the employee for speaking out, even if the belief ultimately proves to be wrong.

To establish an ERA whistleblower claim, the employee need only show that the protected activity was a “contributing factor” in the employer’s decision to take adverse action against the employee. Congress intended that the ERA contributing factor standard provide complainants a lower hurdle to clear than the bar set by other employment statutes. See Stone & Webster Eng'g Corp., 115 F.3d 1568, 1572 (11th Cir. 1997) (“For employers, this is a tough standard, and not by accident. Congress appears to have intended that companies in the nuclear industry face a difficult time defending themselves.”). The whistleblower's protected activity does not have to be the employer's sole reason or even a significant reason for the adverse action, but only has to play some role in the employer's decision. The ERA framework is intended to replace the traditional McDonnell Douglas formulation of retaliation. Once the employee clears this hurdle, the burden is on the employer to prove by clear and convincing evidence that it would have taken the same personnel action absent the employee's complaint. 42 U.S.C. § 5851(b)(3)(D).

B. State Whistleblower Statutes

Although beyond the purview of this paper, the practitioner should keep in mind that almost every state has its discrimination statutes that routinely contain anti-retaliation provisions. Many states also have whistleblower statutes, which range from narrow to broad. Also, the courts in a number of states recognize public policy grounds for wrongful termination based on conduct that is protected by public policy.

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IV. BEST PRACTICES TO AVOID LIABILITY

A. How Jurors View Employers and Retaliation Claims

Retaliation and whistleblowing claims have become increasingly prevalent throughout the United States. One reason for this increase is America’s current perception of big business. The statistics are eye-opening and help explain recent jury verdicts against employers.12 Recent polling by Dispute Dynamics, Inc. shows:

� 65% of those polled agree or agree strongly that the current economic situation is a “direct result of corporate greed.”

� 75% agree with the statement “companies act more unethically than 20 years ago.”

� 73% answered “yes” to the statement “an important function of juries in America is to send messages to organizations to improve their behavior.”

� 71% feel it is more important to see that “justice is done” than to follow the “letter of the law.” Only 29% feel that it is more important to follow the “letter of the law” than the “spirit of the law.”

� In a dispute between an employee and an employer, 88% of jurors tend to believe the employee.

� 67% agree that “too many workers are treated unfairly by employers.”

� 68% disagree or disagree strongly that “if an employee mentions informally to any supervisor that h/she is being harassed, that supervisor has no obligation to report it to the company.”

� 49% of those polled agree or agree strongly that it is common for a company to retaliate against an employee who complains.

� 51% disagree or disagree strongly that “reminding other employees of company rules against retaliation is all a company can reasonably do to prevent harassment by co-workers of an employee who has filed a complaint.”

� Only 42% of those polled disagree or disagree strongly that “most jurors are biased against large companies.”

12 The authors would like to thank Dan Gallipeau, at Dispute Dynamics, Inc., for allowing us to use these statistics.

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� 50% agree or agree strongly that “a million dollar award against a large company would not even be noticed by senior management.” An additional 22% are neutral on the subject.

� 60% disagree or disagree strongly with the statement “I am against punitive damages.” Only 11% agreed or agreed strongly.

Clearly, American businesses should do whatever is necessary to avoid having a jury decide whether they retaliated against an employee. How can employers avoid these claims?

B. Important Steps Employers Can Take to Minimize the Risk of Whistleblower Retaliation

� Employers should have a comprehensive compliance program with strongly worded policies that mandate not only compliance, but ethical business practices.

� Corporate policies should encourage all employees to help prevent and detect unlawful activity, and prohibit discrimination and retaliation for reporting what employees reasonably believe to be wrongdoing.

� Employees should be provided with multiple avenues of reporting any alleged wrongdoing, including one that is outside of the employee’s direct line of supervision.

� Employers should educate managers and supervisors on compliance with applicable laws, rules and regulations, as well as training on awareness and prevention of whistleblower retaliation.

� Employers should make certain that complaints and claims made by whistleblowers are promptly, thoroughly, and fairly investigated by someone who is knowledgeable about the subject matter of the complaint with appropriate guidance and assistance from those who are experienced in the investigation of workplace misconduct.

� If an employee has filed a complaint, employers should conduct performance evaluations of the complaining employee in the same manner as if the employee had not made a claim. The employer should not overly scrutinize the complaining employee, however, management should not overlook or downplay any performance issues solely because the employee has filed a claim.

� If an employee files a claim against the employer, the appropriate personnel (usually HR) should meet with the relevant managers and supervisors and notify them of the employee’s complaint, and instruct managers to involve HR for any disciplinary issues or performance problems prior to taking any action against the employee. While this may create “knowledge of the complaint” by a decision

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maker, it must be done since the supervisor may be the offending employee. Additionally, HR should review with managers what not to say and when not to say it, both to the employee and about the employee to others, to avoid a retaliation claim.13

� HR should remind managers to preserve all documentation, including electronic information, regarding the employee and the employee’s claims. A failure to preserve such documentation may have negative consequences for the employer in litigation. Importantly, however, the employer must avoid any appearance that the company is “scrutinizing” the employee or “papering” the file – i.e. looking for any excuse to discharge the complaining employee.14

� With regard to managers who have been accused of wrongdoing by the complaining employee, the employer should consider taking additional measures to ensure the manager does not retaliate. However, be mindful that the accused ultimately may file a claim of their own.

� If discipline is appropriate against a current employee, the employer should consider the application of progressive discipline policies. The employer will want to be sure that its policies are followed consistently and in detail. If counseling is involved, the employer may want to have at least two individuals present from management, HR, or both, to witness such counseling sessions. Additionally, the employer will want to roughly script the counseling sessions to avoid any statements that might be used as evidence of retaliation.15

� If the accused is the complaining party’s manager, make certain someone else approves any action taken by the manager that involves the complaining party. Additionally, be careful relying totally on the manager’s input. Carefully investigate the manager’s statements to avoid a cat’s paw situation.

13 Evidence of comments made by supervisors and managers can be used to establish causation. In Merritt v. Dillard Paper Co., 120 F.3d 1181, 1183 (11th Cir. 1997), the president of Dillard had said to the employee, prior to discharge, “[y]our deposition was the most damning to Dillard's case, and you no longer have a place here at Dillard Paper Company.” The Eleventh Circuit interpreted the president’s statement to mean that the plaintiff was fired because of his testimony, and thus found direct retaliation. The court noted that anti-retaliation provisions are not meant to prevent employers from terminating employees for legitimate reasons such as sexual harassing behavior and that an employer will generally be entitled to summary judgment when a sexual harasser files a claim alleging retaliation for participation in a sexual harassment investigation. A plaintiff that would ordinarily be discharged for sexual harassment, such as the one in Merritt, would need direct evidence of retaliation, such as a comment like the above, made by an individual in a position of authority. 14 See Upshaw v. Ford Motor Co., --- F.3d ---, 2009 U.S. App. LEXIS 18137 (6th Cir. Aug. 14, 2009) (although discrimination claim was dismissed, court found combination of close temporal proximity and “heightened scrutiny” raised inference of causal connection). 15 Here again, the employer must view these actions through the eyes of a juror. Anything that smells of the employee being set up or treated differently than individuals who did not make a whistleblower complaint can be harmful.

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� Employers should attempt to avoid claims of constructive discharge resulting from discipline by ensuring that the discipline is appropriate and similar to that taken against employees who have not made complaints. Consistency is the key to avoiding retaliation claims.

� It may be prudent to direct managers not to communicate with the complaining employee about the complaint or speak about the claim with anyone. However, isolating a complaining employee entirely may also lead to a retaliation claim. If the employee subsequently resigns, the employer may be vulnerable to a claim of constructive discharge.

� Employers should restrict communication about the claims to those who need to know. Similarly, communication among those in the need to know group should be restricted to formal communication, avoiding casual conversations and email. Finally, the employer should make a decision on whether to involve counsel in such discussions and should appreciate the parameters of the privilege that attaches to attorney client communications.

� When communicating with witnesses, every interview should begin with a statement of the employer’s policy and intent to comply with the law. Witnesses should be assured that they will not be retaliated against for participating in the interview.

� Finally, consider the appointment of a “termination or adverse employment action czar.” This person should be an HR manager familiar with the legal issues related to whistleblower and retaliation claims in addition to company policy on progressive discipline, etc. Make sure this manager has the work and communication skills to be a good witness. Some companies may be reluctant to bypass the traditional management structure. However, given today’s legal environment and the myriad of new statutes protecting whistleblowers and employees from retaliation, many companies now understand the need for such a position.

V. CONCLUSION

By taking proactive steps based on the awareness of ever-expanding ways in which retaliation claims can be established, employers will be better able to insulate themselves from paying burdensome retaliation judgments in the future.