Taking Remedial Action Is Not A Foolproof Defense Against Retaliation Claims 

 

(Published October 15, 2008)

 

Reprinted from MANAGER'S LEGAL BULLETIN, a widely read employment law newsletter that communicates legal guidelines to managers through scenarios based on real-life cases. Click here to view a sample issue, get more information, or sign up for a risk-free subscription.

 

A retaliation claim involves a protected activity, an adverse employment action, and a causal connection between the two.  Without one of these elements, the retaliation claim fails.  You might assume that remedying an adverse action would preclude a successful claim, but that's not always the case.    

 

NO HARM...

"Veronica knew that by rating my performance as 'poor,' I wouldn’t qualify for the merit pay raise, which, by the way, I was otherwise qualified to received," Annie Conner complained to manager Marla Wolfe. 

 

"Are you saying that the poor rating was undeserved?'  Wolfe had a hard time believing one of her supervisors would do such a thing. 

 

"That's exactly what I'm saying!  There's nothing poor about my performance.  The only reason she rated me as poor is because I’m black and because I've complained about her racist behavior in the past!"

 

"Race isn't the problem," soothed Wolfe.  "It's your personalities.  Both you and Veronica are very strong-minded individuals.  You've butted heads in the past, and you were bound to do so again in the future."

 

"We butt heads because Veronica started making unreasonable job demands and became unfairly critical of my work after I accused her of discriminating against me," accused Connor.

 

"I'm sure that's not the case," Wolfe said in dismissing the accusation.  The manager then spent the next 20 minutes counseling Connor on how to improve her relationship with her immediate supervisor.  "I'm confident that if you try some of these techniques, your interactions with Veronica will be much more pleasant and productive."

 

...NO FOUL?

Instead of practicing those techniques, Connor appealed Wolfe's denial of her complaint via the company's internal complaint procedures.  After not being selected for a promotion, Connor filed discrimination and retaliation charges with the Equal Employment Opportunity Commission (EEOC).  Wolfe subsequently reclassified Connor's pay grade and increased her salary, retroactive to the date she originally would have been eligible for the raise had she not received a negative performance evaluation.  Connor still sued. 

 

In dismissing her retaliation claim, a district court ruled that Connor had not suffered an adverse employment action.  An appeals court disagreed.  While she did not suffer an ultimate adverse action (e.g., being fired, demoted), said the court, she did suffer a materially adverse action, i.e., a serious and material change in the terms, conditions, or privileges of employment.  The retroactive pay increase does not alter the fact that Connor had been denied the increase or erase all injury associated with it; specifically, the lost value and use of the funds during the time she was not receiving them.  Case proceeds.

 

As this case shows, taking remedial actions doesn't always absolve your organization of liability, especially when those actions come months after the fact and only after the employee pursues their claim in court.  That’s not to suggest remedial actions shouldn't be taken, but they should be taken promptly. 

 

One of Wolfe's biggest mistakes was summarily dismissing Connor's complaint against one of her most trusted supervisors.  Had Wolfe investigated Connor's allegations when Connor first complained to her, she might have learned that there was some truth to them, and, then, could have worked to promptly rectify the situation. 

 

Acting only after the employee filed charges with the EEOC implies that the employer was motivated not by a desire to make things right, but by a desire to avoid litigation.  Some courts have declined to endorse a rule that would allow employers to escape liability by merely reinstating an aggrieved employee months after termination, whenever it becomes clear that the employees intends to pursue their claims in court.