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Sometimes, an employment relationship can become acrimonious.  A disgruntled employee is more likely to complain and more likely to fail to perform work.  As a result, some terminated employees try to assert that the loss of their employment was not their performance or attitude but instead because of unlawful retaliation.  In lawsuits accusing the employer of retaliation, plaintiff-employees generally must prove a retaliatory motive.  Peter Mavrick is a Fort Lauderdale employment attorney, who defends businesses and their owners against employment law claims. Such claims include alleged employment discrimination and retaliation as well as claims for overtime wages and other related claims.

There are three components to a retaliation claim.  The first is that the employee engaged in protected activity. A lot of actions can qualify as protected activity, including complaining about unlawful discrimination, participating in a discrimination lawsuit as a witness, requesting accommodations for a disability, or demanding overtime wages.  Howard v. Walgreen Co., 605 F.3d 1239 (11th Cir. 2010)  (Title VII prohibits retaliation “when an employee ‘oppos[es] any practice made an unlawful employment practice by [Title VII]’ or ‘has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing’”); 42 U.S.C. § 12203(a) (describing protected activity in relation to the ADA); 29 U.S.C. § 215(a)(3) (permitting an employee to sue for retaliation under the FLSA if the employee “filed any complaint” about unlawful overtime or minimum wage practices).

The second requirement is that there be an adverse action.  “[I]n the context of a Title VII retaliation claim, a materially adverse action ‘means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.’”  Monaghan v. Worldpay US, Inc., 955 F.3d 855 (11th Cir. 2020).  “[I]t is for a jury to decide whether anything more than the most petty and trivial actions against an employee should be considered “materially adverse” to him and thus constitute adverse employment actions.” Crawford v. Carroll, 529 F.3d 961 (11th Cir. 2008).  An adverse action is most often the refusal to hire a person, refusal to promote an employee, or termination of an employee.

The third component of a retaliation claim is a causal link between the protected activity and the adverse action.  The fundamental difficulty in litigating retaliation claims is that the critical component, causation, is not something that can easily be proven.  The elements of “protected activity” and “adverse action” are actions which usually leave behind evidence.  There is nothing unlawful about these two actions happening together.  Retaliation only arises when there is a causal connection between a protected activity and an adverse action.  This causation element is most often derived from the purported mental intent of the decisionmaker.  Mental intent is not something that usually leaves behind direct evidence.

It may seem that a claim of retaliation can be very easy to make when no unlawful activity occurred.  A plaintiff employee can simply claim that a complaint that he or she made was really protected activity, and that this complaint was the real reason for the adverse action.  To prevent plaintiff-employees from prosecuting meritless claims, courts require that plaintiffs explain the basis for believing that there was a causal connection for the retaliation.  A plaintiff can presume a causal connection only if the adverse action happens immediately after the protected activity.  Thomas v. Cooper Lighting, Inc., 506 F.3d 1361 (11th Cir. 2007) (stating that “mere temporal proximity, without more, must be very close,” and holding that a three-to-four month disparity, “in the absence of other evidence tending to show causation,” is not enough).

In the recent case, Henderson v. City of Birmingham, Alabama, 20-10521, 2020 WL 5011798 (11th Cir. Aug. 25, 2020), the United States Court of Appeals for the Eleventh Circuit affirmed dismissal of an employee-plaintiff’s retaliation claim.  Henderson determined that the employee-plaintiff did not successfully state causes of action for retaliation because the plaintiff failed to articulate why there was a causal connection in the complaint.  Particularly, the plaintiff could not explain how he believed various complaints he made to his employer (i.e., alleged protected activity) led to his subsequent discipline (i.e., the alleged adverse action).  Henderson held that the time period of seven months between the protected activity and the discipline was simply too great of a time period to allow plaintiff to presume they were connected.  Henderson affirmed the conclusion of the trial court, which dismissed the retaliation claims because there was not a sufficient basis to claim a causal connection.

Merely because an employee presumes there was an unlawful retaliatory motive behind a decision does not mean that the court will allow the employee to proceed with a lawsuit.   Employers can successfully challenge these retaliation claims and require plaintiffs to explain and prove the connection between the protected activity and the adverse action.  Peter Mavrick is a Fort Lauderdale employment lawyer.  This article does not serve as a substitute for legal advice tailored to a particular situation.

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