Employee Survival Guide® - Q & A With Mark Carey: Retaliation Claims From Our Listeners

Episode Date: December 19, 2022

In this episode of the Employee Survival Guide, Mark dives into listener questions regarding retaliation claims.  Mark analyzes three real life fact examples and provides you with immediate triage analysis of what he would do in each case.  You will quickly pick up "pro tips" from Mark and incorporate them into your own situation at work.   If you enjoyed this episode of the Employee Survival Guide please like us on Facebook, Twitter and LinkedIn. We would really appreciate if you could leave a review of this podcast on your favorite podcast player such as Apple Podcasts. Leaving a review will inform other listeners you found the content on this podcast is important in the area of employment law in the United States. For more information, please contact our employment attorneys at Carey & Associates, P.C. at 203-255-4150, www.capclaw.com.

Hey, it's Mark here and welcome to the next edition of the Employee Survival Guide where I tell you as always what your employer does definitely not want you to know about and a lot more. Hey, it's Mark and this is the question and answer format podcast for the topic today of retaliation, employment and retaliation. I have to say that the topic of retaliation is probably the easiest claim for me to prove as an employment lawyer and the most popular of what is reported. I have at least three fact situations where I'm going to report to you today. We're going to do

a little triage on. We're going to do a little triage on them. We're going to figure out what's happening and what solutions can be applied to the particular cases. And it will help you figure out the issues you're dealing with with respect to retaliation at work, whether it's led to your termination or you're currently confronting it. So let's just dive in. currently confronting it. So let's just dive in. The first example is an employee who's aged 63 or so and working at a pharmaceutical company. The person is claiming that they're being targeted and harassed since his testimony was given against a former manager in an HR investigation. against a former manager in an HR investigation.

And the performance for the employee is rather stellar. I've been with the company for many, many years and typically have received performance ratings of meets or exceeds and paid very well. And now he's being written up for false compliance errors out of the blue and ones – the false compliance errors that the person never made. So that's your target – that's your fact pattern and let me now kind of triage the issue. Let me address first and foremost the retaliation claim is the easiest claim for any employee to prove and why is that? claim is the easiest claim for any employee to prove. And why is that? It should be a feather in your cap if you're looking for it, but you just got to know what it looks like. And I'll just be as simplistic as possible. You're looking for some type of complaint to HR,

to manager, that you're experiencing unfair treatment. You don't have to use the word discrimination. Just set forth examples of being treated differently because of your protective status, let's say age in this case, that they're saying to their manager that, you know, you're treating me differently than people who are substantially younger than them by like, you know, five years. And you get into whatever example. That literal verbal or email complaint to a manager is all that's needed. You can get even further in it. You can say, you know, the word discrimination or age discrimination if you want to in your verbal or your email. But it really is that simplistic. Now, how does the retaliation claim, how does it

form? Well, you take that action to complain. Generally, you're going to do it because you have a good faith basis to do so. It may not be true in terms of whether it's actually illegal or not, but the law doesn't protect that. The law only says that if you have a good faith belief that there's something happening, and you've got to think about this something. People are not going to make complaints And you got to think about this something. People are not going to make complaints about their job and discrimination because it takes a lot of mental discipline to do this or courage. Let's put this with courage because people are going to ruin their jobs by once they complain and everybody knows that.

And so Supreme Court of the United States has really set the standard of saying we want you to complain. We want you to come forth because that's the right thing to do if you find that something happening will protect you. And so the retaliation claim, it goes like this. You make an accusation or something is happening to you verbally or in email to your manager or coworker – not coworker but HR. And then look at what happens next. The proximity of time between you making that assertion of complaint and what happens next to you in the fact pattern. Look for like the first week and then the next two weeks and look for three weeks. You can go as far as maybe a month and a half, two months. It depends on the facts of the case. What we're looking for is the cause and effect of you complaining and then something bad happened to you at work.

We, employment lawyers, call it an adverse employment action. But something bad like, you know, you got a demotion or you weren't assigned to a particular project, whatever it is, you just point it out. If you can find that next fact that happened, then you have the basis of a close time period following the complaint and the adverse action that happened. We call that the nexus. And you can establish a claim. In the future, if you are severed from your employer, you should be able to raise that easy claim of retaliation. So that's the essence of how mechanics of retaliation work.

Now let's look at a fact pattern. So that's the essence of how mechanics of retaliation work. Now let's look at our fact pattern. A 64- or 65-year-old individual has engaged in testimony of a former manager to HR. So it's an HR investigation. I love those HR investigations, don't you? It really just – they're going to do something to help and really – and then they don't tell you anything about it. They don't even give you a goddamn report back. Even if you ask, you can beg and plead.

They're not going to give it to you because they don't have to. And no one knows that. So HR investigations are – it's like a sham kangaroo court. It's only designed to protect the employer, not you. And they're always going to tell you every single time, 100 percent of the time, they're going to say to you, we found our determination of the investigation to be nothing happened. Nothing was illegally done, et cetera. And every single time we hear this fact pattern, it's always that example or that response given from the employer. So don't waste your time wondering what the investigation is about or the conclusion, whatever.

In this situation, the employee has participated in the investigation and is protected. OK? And some cases and some jurisdictions say, well, it's going to be part of an EEOC investigation. Well, that's not necessarily true. We also have part of the fact pattern that once the employee is engaged in the investigation and said what happened about the former manager and, you know, their performance now is degraded to zero, needs improvement all of a sudden because – and then they have accusations about

quote-unquote false compliance errors. We're not really told what in effect pattern what that meant. But that's telltale signs of a blatant discriminatory bias because you complained. And so retaliation claim, pure and simple. We have an age component because the person's older. So you may be looking at an age claim aspect as well. And you want to look for fact pattern of difference of treatment about age. But for the retaliation situation, it's really easy to see this type of fact pattern and help you discern what is taking place here.

HR investigation, you participate in it. It's not sworn testimony or anything like that, but it's – you talk to HR about what happened. And suddenly you're having negative reviews and nonsensical BS type of accusations about false compliance errors. I mean after being with the company for so many years. So that's a joke, okay? That's simply, you know, that's like the matrix. You see the pattern is happening. So it's a retaliation claim.

And you should be taking word or notice here that you want to look for another job. But build your case before you get out. Don't leave the money on the table for a severance negotiation because that's an easy claim right there. All right, next one. Here, let me gather what this is about. So this one is a statement regarding sexual harassment to HR and sex discrimination. I love these. Courageous person to complain about a former manager.

Let's assume the manager is male. I don't mean to bash men here, but typically that's what we see. Let's assume the manager is male. I don't mean to bash men here, but typically that's what we see. We do see female sexual harassment complaints against – sorry, male complaints about female managers. It does happen. So the complaint is made about sexual harassment, sex discrimination, and soon after, the new manager who is friends with the old manager starts to retaliate against the complainer. You see that a lot, actually. So be on the lookout for that, you know, cold shoulder by the same person or the new person who's friends with the

old person. They're literally just sitting down and just talking behind your back about, you know, you and what you did. And, you know, there's some anger there, of course, because you've complained and you made that person who's the manager, the former manager, look bad. So they have it out for you. So that happens a lot. And then the fact pattern goes into unnecessary and absurd discipline was imposed upon the employee that was not used for other employees. So that's an example where you, when you were engaging in complaints of discrimination for harassment, you want to look at how other people are treated who are similar to you, working in the same group or whatever it is, your department, and how they're treated.

If they're not being given an absurd discipline or a PIP, performance improvement plan, then that's your comparator, so to speak, as we look at it. All these cases are about fact examples of how you're treated versus someone else, Then, you know, that's your comparator, so to speak, as we look at it. All these cases are about fact examples of how you're treated versus someone else, whether it's age, discrimination, retaliation, doesn't matter. It's driven by the facts, okay? You don't need to be a lawyer to look at this stuff. It's just – it's very basic. Just look at how people are treated before and after the events take place and there you go.

So when you write it all down in your little narrative, like I've always told you, in this part of the fact pattern we have, the person was eventually given a PIP, which is a performance improvement plan, and terminated for performance. So terminated for performance means terminated for cause. pattern back up and look at it, the person has complained about sexual harassment to a manager and eventually by the new manager came on board and pipped the person. And fact pattern, we can easily see the elements of retaliation taking place against the employee. And it's pretty easy keys to prove. You ask yourself the insanity, why do employers do this? They do it because they take the risk that you're not going to do anything about it. So really easy case to demonstrate for liability purposes in a severance negotiation to establish easy claim of retaliation. So that's that fact pattern.

I'm going to move on to the next one. This one has to do with an employee who's age 55 and working for a company for more than 25 years. And let's see. There was a minute change in his direct reporting and the employee complained about bullying, harassment, problems with the manager and retaliated against for following compliance rules and refusing to delete records improperly as the employer ordered. Employee complained about the mistreatment and was placed with a new supervisor. That's, again, very common. He was abused by many, so he says, and was terminated in part due to the client – the manager that he was assigned to was terminated due to complaints by the client.

And then we have – the fact pattern goes on to say that the employee was put on a PIP. He or she rebutted that PIP and resisted the formal complaints, et cetera. When I say that the rebutting the PIP, when you create this, make sure you go into the facts of what happened in the allegations of the PIP and rebut it with facts and demonstrate that those things are really, you know, are moot because if you rebut with facts instead of the, you know, the subjective beliefs by a manager but with not really anything factual, you can make it appear that the underlying aspects are the retaliation complaints that were made. In this instance, in our fact pattern, there was a – we don't really know the fact.

Complaints were made – essentially complained about bullying and harassment. So we'll have to assume something took place there. So in this fact pattern, it continues on saying there's an investigation. Outside counsel was brought in. Probably a colleague of mine was on the opposite, you know, working for defense side, investigated the matter. And then they determined no discrimination was found, no harassment. I mean, very common. We hear that all the time. And the fact pattern tells us also that the person was not allowed to see the investigative findings. I told you that happens as well.

And the employee here is still employed with the employer and figuring out whether or not what's going to happen. So I'm going to just go into the aspect of you're still employed and you've experienced retaliation. Let's say you didn't get a promotion or whatever, but you still need your income, stay employed as long as possible. Get your narrative moving, documenting for yourself privately because in the event that you eventually are fired, employers will wait a period of six months before they come after you and fire you. Even though you participated in or complained about harassment, bullying, they'll wait their time because defense counsel tells them, well, just hold off and see what happens.

Maybe you can catch the employee on performance grounds to fire them. The PIP, they put the person on. I mean, all these little stupid default tactics, they try to make it appear like the employee is suddenly bad performing. But if you look at the fact pattern, it's all emanating from the first day the person complained. So in this fact pattern, it's still an ongoing process. So the nexus of time between the complaint and the termination hasn't happened yet. And we're not encouraging the employee to go out and file a lawsuit, of course. But you might want to just re-up the retaliation complaint again if you need to,

just to prolong things as you look for another job somewhere and build your case and see if the employer trips up and does something stupid. I'm going to tell you that I have this kind of internal goal and I have a record internally of keeping an employee employed for probably, I think it was a two-and-a-half-year stint that I kept on filing complaints to continue to bolster the nexus aspect of the original complaint. So if you have multiple complaints, there's no law saying you can't have as many complaints as possible.

The opposing counsel in the case I was working on with a large insurance company out of New York City had complimented me on the fact that, you know, did my client record the employer? It just, they were so frustrated with the fact that I had filed, I think it was probably anywhere from five to six EEOC charges over a two and a half year period of time. And I just would not give up. And eventually the employer relented and we negotiated a settlement of the case and resolved it. So that was an example where you can really drag the process on, keep the employee employed, because I really don't care what you do with your case so long as you have income coming in for yourself and your household. So there's an example I just described. You can file multiple complaints

and keep that ball rolling, keep the nexus going, keep those connected complaints all nice and tidy in your fact pattern. And the employer gets frustrated because like, wait a minute, this person's talked to an employment lawyer, obviously. So it makes it harder for you to get fired. That's an insurance policy. Why wouldn't you want to do that? So it's a favorite little tactic of mine. Again, you're hearing lots of little nuanced tricks that I pull off with these cases because I'm trying to keep you employed if I can. And if I can't, then I'm going to build a case for severance. And the worst case scenario, I'm going to build a case for a lawsuit of retaliation. So hopefully you find these tactics and fact patterns helpful for you, answering real life situations, providing a little triage and what I would do in the

circumstance and what I have done in cases I've worked on. So until next time, I'll talk to you soon. If you like the Employee Survival Guide, I'd really encourage you to leave a review. We try really hard to produce information to you that's informative, that's timely, that you can actually use and solve problems on your own and at your employment. So if you'd like to leave a review anywhere you listen to our podcast, please do so. And leave five stars because anything less than five is really not as good, right? I'll keep it up.

I'll keep the standards up. I'll keep the information flowing at you. If you'd like to send me an email and ask me a question, I'll actually review it and post it on there. You can send it to mcaryY at CAPCLaw.com. That's CAPCLaw.com.