What Makes a Strong Retaliation Case?

Many employment law cases involve workplace retaliation. These involve negative actions taken by employers or other company leaders against an employee who is engaged in a protected activity, such as:

• Whistleblowing
• Reporting company policy violations
• Filing for workers’ compensation
• Asking for the overtime pay they earned
• Talking about forming a union
• Participating in an investigation
• Taking leave under the Family and Medical Leave Act

However, though these claims are common, they are not simple to win, as employers often have a barrage of lawyers ready to help them fight back. As such, it becomes crucial that you put together a strong retaliation case to ensure justice is properly served. But what makes a strong retaliation case in the first place? 

Below, we will discuss various factors that can impact your case and explore some successful examples of workplace retaliation cases that can put what it takes to win into perspective.

Key Elements of a Strong Retaliation Case

As you ask yourself, “Do I have a strong retaliation case?” you first need to establish whether you meet the key elements that such a claim requires. In other words, you must be able to demonstrate the following:

• You experienced harassment or discrimination in the workplace
• You reported the incident
• You were then demoted, fired, or otherwise punished

In workplace retaliation cases, a plaintiff’s main goal is not to show that they suffered discrimination or harassment but that they were punished for stepping forward and complaining about it. 

You must be able to show a clear link between the protected action you engaged in and the adverse actions your employer or supervisor took. Any type of retaliation case requires gathering extensive evidence that proves a causal connection.

However, adverse employment actions can vary. They can be obvious, including things such as:

• Demotions
• Terminations
• Pay cuts
• Reduction in hours
• Disciplinary actions
• Transfers

But there are also more subtle forms of retaliation that you can experience, which make establishing that causal connection much more complicated, such as:

• Threats
• Poor performance reviews
• Exclusion from meetings and work events
• Actions that otherwise create a hostile work environment

Timing is also a concern, as you must demonstrate that the action(s) taken against you occurred shortly after your protected activity. For instance, if you have a good work history but receive a negative review a few days after making a harassment complaint, that would provide solid grounds for a retaliation case.  

Documenting Retaliation: The Evidence You Need

Having the right evidence can make or break your retaliation case. With that in mind, you will want to gather anything demonstrating that you made a complaint and suffered for it.

These things may include the following:

• Emails
• Text messages
• Memos
• Personal notes
• Journal entries

It is best to keep detailed records of demotions, pay changes, and negative performance reviews. Making a timeline that clearly states every adverse action you suffered is especially helpful. 

Additionally, if you have a good work history and have received positive reviews, you can incorporate these as part of your evidence. As mentioned earlier, a negative review immediately after a protected action can show a drastic change in treatment, pointing to retaliatory behavior. 

You can also rely on company policies and procedures. If your employer or supervisor varied from standard company behavior, that, too, could point to retaliation. In instances where you claim that your schedule has been altered or your work hours have reduced, having records of your attendance and typical schedules will also prove valuable.

Lastly, establishing a pattern of behavior could also affect your claim. If you can show that many company employees have suffered similar adverse actions after engaging in a protected activity, this can point to a pattern.

The Role of Witnesses in Proving Retaliation

Your employer’s adverse action against you can often be subtle enough to come down to your word against theirs. But with witness testimonies, you can help prove your statement is true. Having someone who would not benefit from the outcome of the case vouching for you also makes it more difficult for your employer to discredit you. 

However, it can sometimes be tough to identify witnesses who will help your case. Witnesses can include supervisors, coworkers, and anyone observing retaliatory actions, but you need credible people. If a coworker, for example, has a history of lying or is someone who has had issues with the employer before, they may not be credible enough to help your case. In some instances, their testimony could even harm it. 

One of the biggest hurdles in securing witnesses for these kinds of cases is the fear they may have of also experiencing retaliation. Some witnesses will only cooperate if you can maintain their confidentiality, so you must be ready to offer that. 

Legal Standards and Burden of Proof in Retaliation Claims

Retaliation cases involving discrimination usually rely on a three-part burden-shifting framework, especially without direct evidence. 

The framework begins with the employee having the burden of proof. In other words, you’ll have to show that you suffered adverse actions in response to a protected activity you participated in. You will use the aforementioned evidence to demonstrate what the employer did. 

Circumstantial evidence, like suspicious timing or ambiguous language from your employer, is acceptable in these kinds of claims, according to the 11th Circuit Court. The court has also ruled that other information from which unlawful intent can be inferred, like seeing the systematic better treatment of other employees in similar positions, can be admitted. 

From there, the burden of proof shifts to your employer, who will have the chance to demonstrate that their actions did not have a retaliatory basis. They may, for instance, try to say that they demoted you because your job performance had dropped. 

The burden of proof shifts back to you for one last time. You will have to show that your employer’s reasons for their adverse actions are a pretext for retaliation. 

Overcoming Employer Defenses: Counteracting Common Arguments

In their attempts to win workplace retaliation cases, employers can try a number of tactics. Learn more about them and how you can counteract each one below:

Discrediting the Initial Claim

A common employer argument in a workplace retaliation case is to emphasize whether the protected activity their employee participated in was merited or not. For instance, if you suffered harassment at work and filed a claim that led to retaliation, your employer will try to prove that the harassment never occurred to begin with.

What they may not know is that it makes no difference in these cases. The focus is placed on their retaliatory action, not on whether there is enough proof to validate your initial claim.

Offering Non-Retaliatory Excuses

Another common strategy employers use is providing non-retaliatory excuses for their actions. They might claim that you deserved the adverse consequences for various reasons, such as poor work performance or company downsizing, among others. With the right evidence, you can show these arguments for what they are: excuses to cover up retaliation. 

Claiming a Standard of Behavior

You can also demonstrate that the employer’s action does not follow the company standard(s) they are using as an excuse. For example, if you were fired for one instance of poor performance where others have only gotten warnings, you can show there was a retaliatory motive behind the action. 

Examples of Strong Retaliation Cases

An employee at the University of Colorado alleged that he was passed over for promotion several times because of his race. He demonstrated that his superiors recommended the promotion, yet the chair of the department and the person in charge of hiring never considered him. After this occurred a few times, he complained, resulting in his termination. Thankfully, he was able to demonstrate with email evidence, as well as with witness testimony from students, that workplace retaliation was, indeed, involved. 

Another successful example of a strong retaliation case is Hoyt v. Target Stores. Susan Hoyt worked for more than 13 years in a clerical capacity in a Target store, receiving excellent performance reviews. That is, however, until she asked for travel time, which a new supervisor denied her. The denial violated store policies, which led Hoyt to file a formal complaint. 

Afterward, the supervisor who denied her the time off began leaving negative performance reviews, escalating to the point where they accused her of falsifying her timecard records, leading to her termination. 

By using the evidence she had of all of her positive performance reviews, alongside witness testimonies, Hoyt was able to prove retaliation and win her case.

Filing a Retaliation Complaint: When, Where, and How

Beyond substantial evidence, ensuring you file a claim with the right entities is another major aspect of what makes a strong retaliation case. 

If you have experienced retaliation in violation of either Title VII (which focuses on discrimination on race, sex, color, background, and more) or the Pregnant Workers Fairness Act, you must file your claim with the EEOC. It is essential to file the charge as soon as possible because you have, in general, 180 days from the day the retaliation took place. This deadline may be extended to 300 days if the charge also is covered by a state or local anti-discrimination law.

If you work in a Florida state agency, you can also file a charge under Florida’s Whistle-blower’s Act if you have been retaliated against for revealing protected information. You must file within 60 days of the adverse action, and you can do so online. 

Regardless of the specific circumstances you are facing, the complexities of proving retaliation in the workplace make it best to have a lawyer with experience on your side. They will help you gather the appropriate evidence and file the charge on time. 

How Wenzel Fenton Cabassa, P.A., Can Support Your Retaliation Case

At Wenzel Fenton Cabassa, P.A., we offer years of experience helping the people of Florida battle workplace retaliation. Our team of lawyers is dedicated to protecting employee rights and will help you understand those rights, gather the evidence that can prove your charge, and advocate for you in court. If you have been the victim of workplace retaliation, turn to us for help today.

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