Is this Retaliation? Archives

“How can I prove I’ve been retaliated against?”

Published on May 10th, 2012 by Alan L Sklover

Question: Alan, I filed a discrimination complaint against my employer with the Equal Employment Opportunity Commission (“EEOC”). Two weeks later, I was told “We are going to monitor your work performance now.” Though I never received a negative employment review, two months later, I was demoted. Then, a year later, I was fired for poor performance.

A friend of mine was treated this way also after she filed a complaint of harassment. I have proof of what was said to me about my work performance “going to be monitored.” Will this be enough to prove that what happened to me was retaliation?

M
Scotch Plains, New Jersey

Answer: Dear M: What happened to you sure sounds like retaliation. However, “sounds like” is not enough. More is required to  establish that retaliation took place. Here are my thoughts:        

1. To “prove” that retaliation took place, you need to establish that, in what happened to you, there can be found the three necessary elements of retaliation. To establish any legal claim, there are certain things that need to be proven. They are what lawyers and judges call “the elements” of the violation. To prove retaliation took place, the first thing you need to prove is that you engaged in an activity that is “protected” by law. In your case, that is easily proven, as your filing a claim with the EEOC is such a “protected” activity. The second thing that you need to establish for a retaliation claim is that you suffered a “negative employment action.” In your case, that is easily proven, as you were both demoted and fired, both of which are “negative employment actions.” The third element that needs to be proven is called “causal connection.”    

2. Of the three things you need to prove, the hardest one to prove is “causal connection.” “Causal connection” means that (a) your filing a claim of discrimination with the EEOC was the thing that “caused” (b) your demotion and firing. Of the three elements of retaliation that must be proven, this is the hardest one of the three, as it is “in the heart” of the employer. However, we can “prove” what was “in the heart of the employer” by a variety of facts, events and circumstances.  

3. Here are ten common things that are often used to lead to a conclusion that a “causal connection” was present that tied together (a) a discrimination claim and (b) a “negative employment action”: (1) closeness in time between the “protected activity” and the “negative employment action”; (2) if it was the same people who you complained about who were the ones who demoted and fired you; (3) your employer giving a false or incredible reason for your demotion or firing; (4) if you were demoted or fired for things that other people have done and have not been demoted or fired, that is, different treatment; (5) if your work performance or conduct was given scrutiny greater than your colleagues’ work performance or conduct was given; (6) if you were demoted or fired in violation of existing company policies or procedures; (7)  if efforts were made to confuse, obfuscate or cover up what really took place; (8) if one or more people involved in your demotion or firing admitted their motives to you or others; (9) if you were demoted or fired for mere trivial reasons; and (10) if it can be shown your employer has had a history of illegal retaliation. There are many, many others.

Note that these things do not “prove” retaliation, but they are strong indicators of retaliation, and when you can show that a few of them have taken place in your facts and circumstances, it is very convincing to others that retaliation was, in fact, “in your employer’s heart.” That is as close to “proving” as you can get, without an outright admission by your employer, which is as rare as a hen’s tooth.    

4. If and when you do establish a “basic” case (lawyers call it a “prima facie” case) of retaliation, then the employer might be able to defend itself if it can prove “good business reason.” For example, you might present a very compelling case of illegal retaliation, only to have your employer come up with a very good reason for, let’s say, your firing: it believes you stole money from a cash register. If that was true, and could be proven to be true, or likely so, then any claim you might have of illegal retaliation would surely and swiftly go “down the drain.” Sometimes, unfortunately, both “sides” have pretty convincing sets of facts, events and circumstances, and it can be hard to know who to believe.  

5. If you think you have even a few reasons to believe retaliation took place, I strongly suggest you file a second complaint with the EEOC and/or with the state discrimination agency in the state you worked, this one for retaliation, which is a more serious violation of law than the initial discrimination. In my experience, no “case” is perfect; each has its imperfections, its doubts, its weak points. If you believe that there is any real chance of convincing, say, your next door neighbor that what happened to you was the result of illegal retaliation, then I suggest you file a new complaint with the EEOC and/or with the state discrimination agency in the state you worked, of illegal retaliation. First, when the matter is investigated, more information may come out that might help prove your case. Second, many employers simply settle such matters when they see employees are serious about getting justice. Third, many people – perhaps most – suspect most employers of engaging in illegal retaliation. In fact, many jury members will admit that “employers are probably guilty” even before hearing a case, based on their own experiences.

Retaliation for exercising your legal rights is an awful thing, because what good are legal rights if people are afraid to exercise them? It is my hope that you will consider very seriously filing a retaliation claim, and that you will persevere in following it up.                                                                                                      

 My Very Best,
Al Sklover

Repairing the World –
One Empowered and Productive Employee at a Time ™

© 2012 Alan L. Sklover, All Rights Reserved.

“Does the Sarbanes-Oxley Act, or other laws, protect lower-level employees of not-for-profits?”

Published on October 12th, 2011 by Alan L Sklover

Question: I have a question: Does the Sarbanes-Oxley Act in reality protect little people, meaning low-rung employees? Or are we out of luck?

In my case, this means a bedside nurse at a large private not-for-profit hospital. I am wondering about cases such as mine that do not represent much money, but a real injustice exists, nonetheless.

I blew the whistle (at the Department of Health) on my employer’s intention to put patients willfully at risk through a very unusual plan in order to save money. The plan was scuttled. I now have the worst Performance Improvement Plan of my nursing career – in fact, the only negative performance review in my 35 years.

To whom could I turn for help? It appears no attorney wants to take my case, or even be paid to assist me to know what my next steps ought to be.

J.G., R.N.
(City Not Specified)

Answer: Dear J.G.: Let me offer you a little background on the federal Sarbanes Oxley law, and then I can answer your questions about (a) whistleblowing, (b) retaliation and (c) fraudulent Performance Improvement Plans.

1. The federal Sarbanes-Oxley Act is a sweeping law enacted in 2002 that targeted primarily publicly-owned, for-profit companies. Sarbanes-Oxley was passed in response to the public uproar over the great corporate scandals based in fraudulent accounting at several large public companies including WorldCom, Tyco and Enron. The law mandated several new reforms intended to prevent any more large corporate collapses due to malfeasance. The reforms focused primarily on oversight of financial transactions, record-keeping, and auditing procedures, and made senior-most executives liable for failures to do so.  

Every level of employee – from the highest-paid executives to clerical workers paid minimum wage – is protected by Sarbanes-Oxley.

2. However, two provisions of the Sarbanes-Oxley Act do apply to not-for-profit companies: (a) anti-shredding, and (b) anti-retaliation. (a) Section 802 of the law prohibits knowingly altering, mutilating or destroying accounting records which are under review by the U.S. Government. (b) Section 1107 prohibits retaliating against a whistleblower, and provides for criminal penalties for anyone who engages in such retaliatory conduct.

From your brief note, I cannot tell if the activity you blew the whistle about is covered by the Sarbanes-Oxley Act; from your description of the activity your reported, it does not sound like false accounting or illegal shredding.

3. Depending on your state, other state laws may apply to (a) both protection of “whistle-blowers,” especially when it involves public health or safety, and (b) what seems to be outright retaliation in the workplace.  Even though Sarbanes-Oxley may not apply to your whistleblowing activity regarding your employer’s improper activity, the state in which you work may well have other “whistleblower” laws to protect those who report wrongdoing from retaliation.

Additionally, in more and more states, if it is the case that your employer has an anti-retaliation policy that forbids retaliation against those who in good faith report apparent wrongdoing, Courts are holding employers accountable on “breach of contract” theories. 

You did not indicate in your note in what state you work. You might try to contact the Labor Department of your state to make inquiry if any such law, or court precedents, exist under the laws of your home state.

If you believe you’ve been retaliated against, you might use our “Model Memo Objecting to Retaliation on the Job” to stop it and have it reversed. “What to Say, and How to Say It,™ just [ click here. ] Delivered by Email – Instantly!

4. Your difficulty in obtaining legal advice and representation is probably due to the legal community’s relative ignorance about Performance Improvement Plans. In my opinion, 99% of lawyers mistakenly view Performance Improvement Plans (“PIP”), as “not anything legal.”  It’s quite often the case that employers retaliate against employees by using fraudulent Performance Improvement Plans to rid themselves of employees who, for whatever reason, they want to fire. Sadly, almost all lawyers think PIP’s are “not a legal thing,” that is, “nothing they taught us about in law school,” and so turn away people facing the problem you are facing. 

5. It is for this reason that our blogsite offers videos, articles and model letters to help you help yourself in this dilemma.  We believe that people should try to help themselves, to the extent they can, whenever facing problems at work.

First, if you would like to review the many articles I’ve written on Performance Improvement Plans (“PIP’s”), just [click here].  

Second, if you’d like to view our video entitled “Performance Improvement Plans – How to Respond,” simply [click here].

Third, we offer a Model Letter for Pushing Back at a False Performance Improvement Plan. If you would like to obtain a copy, you may do so if you [click here].

6. Lastly, we offer consultations that offer advice and counsel on how to “navigate and negotiate” (a) whistleblowing at work, (b) retaliation for whistleblowing, and  (c) fraudulent Performance Improvement Plans. If you are interested in obtaining help in identifying what path to follow, and what steps to take, just [click here].

J.G., what you did was courageous, and is to be commended. In turn, what your employer has apparently done is disgusting, and should be condemned.  I hope you will not permit yourself to be a victim, and will stand up for yourself the same way you have stood up for others.                                                       

Best, 
Al Sklover

Help Yourself With
These Unique PERFORMANCE IMPROVEMENT PLAN (PIP) Materials

PIP 1: Model Response to Receiving a PIP
PIP 2: Model Second Response if Your First Response Does Not Work
PIP 3: 152- Point Step-by-Step Guide and Checklist for a PIP
PIP 4: 3 Memos Seeking Feedback of Clients, Customers, Colleagues for Use in PIP Pushback
PIP 5: Final Memo to Delay PIP Conclusion to Continue Job Search
PIP 6: After Successful PIP Pushback, Suggesting Positive Next Steps

[ Click Here ] and Go to Section "H"


 
 © 2011 Alan L. Sklover, All Rights Reserved.

“Can my boss legally replace me with his girlfriend?”

Published on February 23rd, 2011 by Alan L Sklover

Question: I’ve been a dedicated and loyal employee for 33 years, with uniformly excellent reviews until four years ago.

At that time my plant manager started showing favoritism to another female employee who reported to me. He stated that he would like to see her in my job position. He started to harass me and threaten my job. This continued to escalate until I told him in front of our HR Manager that he was having an inappropriate relationship with this other female employee. In 2008 I filed a complaint of harassment; this is the only reason I believe I have lasted this long.

My company has recently been bought by another company. During this acquisition over 400 jobs were eliminated nationwide. I believe my boss used this as a reason to get rid of me. I have a log of the events, plus over 75 emails between my boss and the other female employee that show an inappropriate relationship between them.

I’ve been offered six months of severance pay. Should I take it or do I have a case?  

         V.L.
         Kingsburg, California

 Answer: Dear V.L.:

Your letter seems to raise two possible claims: (a) retaliation for reporting your supervisor, and (b) your boss replacing you in order to give a job to his girlfriend.

a. Retaliation requires proving there is a causal connection between (i) your report of harassment to HR, and (ii) your being chosen for job elimination. While it may be that your boss is now retaliating against you for your 2008 report of harassment, without further information it’s not entirely clear that your report of harassment led to your job loss. I know you feel that, but feelings are not sufficient. It’s been at least two or three years since you filed your claim of harassment. That length of time would suggest that retaliation may not be present. What’s really important is “How did your boss treat you for the last two or three years? What’s probably most important is “Did your boss make the decision to eliminate your position, or was that decision made by others?” From what you’ve reported, I don’t see a strong case for retaliation.

b. Believe it or not, as a general rule, there is nothing illegal about a boss making employment decisions based on who he or she likes, or is having a relationship with. I believe most people think that there is some law that says bosses can’t make employment decisions based on “affection.” That is a very widespread misconception. Oh, sure: most companies forbid that, but does that mean that it’s illegal. In fact, it’s perfectly legal.

If you owned a company, and wanted to hire your daughter or son for a job – even as the President of the company – do you think the law should forbid you from doing so? What if you wanted to hire your mother as the Chief Financial Officer; do you think the law should say you cannot do that? Even the United States Supreme Courts has said, essentially, that “People will never stop being human, and part of being human is liking some people better than others. If the Courts had to interview each employee each time an employee thinks a decision was made on who is liked, and who is not, the Courts would have no time to do anything else, ever.”

In the law, a boss cannot say, “If you become my girlfriend, I will give you a raise,” because that is a kind of illegal sexual harassment. However, the law says a boss can say to someone “Since you are my girlfriend, I am going to give you a raise.” Companies are free to forbid that kind of thing, but the law does not.

c. I cannot advise you to take or not take the severance offer, but I can tell you that – from the limited facts you presented – I do not see a strong legal case. What I do strongly suggest is that, if you are considering filing a claim or suit instead of accepting your severance offer, that you consult with an experienced employment attorney near where you live. In all events, it’s always a good idea to consult an experienced attorney to review any agreement you may sign, whether or not it’s a severance agreement. 

If you would like to obtain the names and contact information for at least five experienced employment attorneys in your locale simply [click here].

Hope and trust this helps. While it may not be the information you were hoping to get, it is always important to know the way the law sees things.

My best to you.

          Best, Al Sklover   

©  2011 Alan L. Sklover, All Rights Reserved.

“Does what happened to me sound like a Disability Discrimination and Retaliation claim under federal law?”

Published on December 17th, 2010 by Alan L Sklover

Question: For 35 years I have worked for a major utility company. I did not call in sick one day in over 28 years. A year ago, I was diagnosed with Stage 2 colon cancer, and underwent chemotherapy. When my cancer went into remission, I returned to work.

Recently, though, my colon cancer came back as Stage 4. So that I could go to my oncologist, receive chemotherapy and work I requested an accommodation: starting work early (6:00 am) and leaving early (1:30 pm). Without taking my breaks, this would make my day a full eight-hour day. I was turned down.

All of a sudden, after 35 years, I went from a Superior job evaluation (prior to getting ill) to being told on my latest job evaluation that I don’t even know my job.

I wear a portable chemotherapy pump, which my manager calls “lighter fluid.”

I am now being denied the opportunity to work overtime, constantly having my jobs put under special scrutiny, and other such things.

I filed a complaint with the federal Equal Employment Opportunity Commission (“EEOC”) about violations of the Americans with Disabilities Act (“ADA”), which is currently being investigated. My manager keeps threatening me that he would like to see that complaint just “disappear.”

Does it sound like I have a good claim of Disability violation, and retaliation?

Steve
Harrison, New York

Answer: Steve, from what you have written, while it sure sounds like your employer has been mean to the point of cruelty, (a) I am not certain that you have a claim under the Americans with Disability Act (“ADA”), but (b) it does sound very much like you have a claim of illegal retaliation under that same law. 

(aFirst, under the ADA law, you must be legally “Disabled.” I do not for a moment mean to minimize your cancer and its effect on your life, but the Americans with Disabilities Act (often called the “ADA”) provides significant legal protections only to people who suffer from “disabilities” as the law defines that word. “Disability” is defined in the law as “a physical or mental impairment that substantially limits one or more major life activities” or a person may be “regarded as having such impairment.” That means, generally, a limitation on your ability to walk, see, hear, talk, eat, breathe, etc. Though it may sound very unfair, “illness” is not the same as “disability.” So, having cancer, even late-stage cancer, is not necessarily a disability, but rather a serious illness. Can cancer result in a disability? Yes. I can’t tell from what you have written whether, in your case, it has. I think it is likely the EEOC is looking into that particular issue at this time, as well as whether you may be perceived to suffer from a disability.

(bSecond, under the ADA law, a “Reasonable Accommodation” must be made. Was your request “reasonable?” I can’t tell from what you’ve written. The reasonableness of any requested accommodation depends on many factors, including how critical your work is, the size of your employer, whether your work might affect public health and safety, and many other factors. I think it is also likely that the EEOC is looking into this issue, as well. 

(cThird, the ADA law expressly prohibits Retaliation against an Employee who files a complaint under the law. Retaliation requires three elements: (1) the employee must be a “protected” individual or engaged in a “protected activity”; your filing an ADA complaint satisfies this; (2) the employee has been negatively impacted; I think your all-of-a-sudden negative performance review, denial of overtime, and your chemo pump being called “lighter fluid” likely satisfy this element; and (3) element #2 must have been “caused” by element #1; your manager’s comment seems to prove that.

For these reasons, you seem to have a strong case of illegal retaliation, but I cannot opine on the strength of your case of illegal discrimination. By the way, it is entirely possible that, even where a person is found to be not disabled, that same person can be a victim of retaliation for having filed an ADA complaint.

If you believe you may have been retaliated against, to obtain a Model Letter you can use to File A Complaint of Retaliation with Your employer, simply [click here].

(dFourth, the EEOC encourages employers and employees to “mediate” their differences, and will even provide a mediator at no expense. It is extremely rare to have the EEOC take up your case as your advocate; much more likely, they will simply issue to you a “Right to Sue” letter, which permits you to sue in Federal Court.  I don’t know if you are aware of it, but your “case” can sometimes be resolved without having to go to court by means of a mediator provided by the EEOC. If your employer is willing to participate in a mediation, this is something to seriously consider. If you would like to know more about the process of mediation, I have written an article about it. Simply [click here]. 

(eFifth, it may be time to consider hiring an attorney, if you have not already. If you don’t yet have an attorney, you should now consider hiring one. If you go into mediation, you can engage in the process without an attorney; there are advantages and disadvantages to “going alone” in mediation. But if you or your employer do not want to mediate, or if you mediate but do not reach a settlement, you will soon need to hire an attorney to move forward into court. I don’t think any person should go into court without an attorney. If you would like to obtain an experienced employment attorney in your area, your local bar association referral service is a good place to start.

(fSixth, and finally, you may want to consider taking a Family Medical Leave Act leave of absence. If you need time to care for your health and your employer is not accommodating you, you may want to consider taking leave under the Family Medical Leave Act (FMLA). The FMLA provides you with the opportunity to take time off to care for your health and at the same time, protect your job. It is considered “protected leave” under the law. To view our Special Issue: The Family Medical Leave Act (“FMLA”) – The 50 Things You May Need to Know [click here].

The first step in taking a FMLA leave of absence is simply requesting the forms and information from your employer. If you need assistance in making this request we offer a model letter to send to Human Resources to get the process started.

To purchase our Model Letter Job Issues 10: “Model Memo Asking for FMLA Information” [click here].

Hope this is helpful. You will be in my prayers for a speedy and complete recovery.

Best,
Al Sklover

© 2010 Alan L. Sklover, All Rights Reserved.

“Does this sound like I have a case of discrimination?”

Published on November 21st, 2010 by Alan L Sklover

Question: I am an African American woman. Recently, my boss has stated some very negative things about my race, right to my face. For example, she stated that she feels that black women emasculate their men by being overly aggressive. I objected to this gross racial generalization.

I went through proper procedures, and all “heck” broke loose. First, management tried to dissuade me from filing a complaint. When that didn’t work, certain high-level employees tried to intimidate me. When that didn’t work, one of the Human Resources managers came to our offices and investigated what happened. The investigation didn’t come to any conclusion.

Then they tried to set me up by placing me on a “final warning.” Instead of the “final warning” being handled confidentially, as company policy requires it to be, my boss told people in our office and even outside our company what happened.

I’ve been employed by this company for nearly three years, and have all excellent performance reviews – well, at least until I stood up and objected.

I am thinking of filing a complaint with the Equal Employment Opportunity Commission (“EEOC”) and our local Labor Board. Any thoughts?   

              T.T.
         Charlotte, North Carolina

Answer: T.T., from what you have told me, it would seem you have a good case of illegal retaliation in response to your complaint of race discrimination, under both state and federal laws. I am not sure you have a case for race discrimination, which is different than retaliation. Let me share with you my thinking:

First, illegal discrimination and illegal retaliation for objecting to discrimination, are two separate (though related) violations of law. It’s like speeding and driving while drinking: they may be related, but they are not the same thing. And just like speeding and driving while drinking, you can be found innocent of one, but guilty of the other. In other words, a person could be found not to have discriminated, but they could be found guilty of retaliating against an employee who – even incorrectly – reported discrimination.

Second, from the words that came out of your boss’s mouth, she seems to have a negative view of African American women, and a troubling need to tell you about it. That would suggest to me that she may well, indeed, not like you at least in part because of your race. However, from what you have reported, this was an isolated, single mention of your boss’s view of African American women. At least from what you wrote, I see no long-term, continual course of such conduct. Your past good reviews suggests that your boss has found you to be an excellent performer. A single comment does not, in itself, make a case of race discrimination in employment.

Third, since you received excellent performance reviews in the past, and a decidedly negative one now – after you made an objection to the open expression of racial animosity – there would seem to be illegal retaliation here. Retaliation in the law requires the presence of three distinct elements: (1) engaging in a legally protected activity (here, your complaints about the racially hostile language); (2) a negative employment action (here, your final warning); and (3) a “causal link” between number (1) and number (2) (here, it seems that your sudden poor rating was a result of your complaint.) 

For these reasons, I think that you have, at the least, a “prima facie” (Latin words for “at first view, before full investigation”) case of illegal retaliation. I urge you to file a formal complaint with the federal E.E.O.C. as well with the North Carolina Department of Labor “Employment Discrimination Bureau,” or “EDB.” Both agencies can perform the full investigation your facts and circumstances warrant. You can find assistance at www.nclabor.com/edb.

Discrimination is rooted in ignorance. We should not deny it, or be intimidated by it, but rather confront it, head on, with both respect and determination. It is the only way to defeat it, and defeat it we must.

Retaliation for standing up and objecting to discrimination is, to my mind and in the law, a worse violation of the law. It is not rooted in ignorance, but rooted in intentional vengeance. It is doubly important to stand up against illegal retaliation.

I hope this helps you in your decision about what to do. If this has been helpful, please tell at least one or two friends about our blog . . . we would so very much appreciate that.

        Best, Al Sklover   

© 2010 Alan L. Sklover, All Rights Reserved.


Alan L. Sklover

Alan L. Sklover

Employment Attorney
and Career Strategist
for over 35 years

Job Security and Career Success now depend on knowing how to navigate and negotiate to gain the most for your skills, time and efforts. Learn the trade secrets and 'uncommon common sense' of Attorney Alan L. Sklover, the leading authority on "Negotiating for Yourself at Work™".

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