RETALIATION IN THE POST EMPLOYMENT CONTEXT: NOT A TIME TO LET YOUR GUARD DOWN

By Nina Pirrotti 1

Increasingly, employers are recognizing their duty not to retaliate against their employees

for engaging in protected conduct, whether that conduct involves complaining about

discrimination, filing a wage or worker's compensation claim or reporting a matter of public

concern to the appropriate body. Those same well infOlmed employers, however, may very well

slip - - let their guard down if you will - - and engage in retaliatory conduct once the employee is

no longer in their employ. As the discussion below will illustrate, they do so at their peril.

Retaliation is alive and well in the post employment context. We plaintiff employment

lawyers see it in the frivolous lawsuit or counterclaim or even the otherwise legitimate claim

filed with a retaliatory motive, meritless oppositions to the departing employee's application for

unemployment benefits, the refusal to rehire a qualified candidate and the negative reference

which costs the former employee a new job. Is such retaliation actionable given that the plaintiff

was not in the employ of the defendant when the retaliatory conduct occurred? While there is no

universal consensus yet, many courts are answering this question with a resounding yes,

particularly in the post Burlington Northern world.

Proving Retaliation Claims

In order to establish a claim for retaliation, a plaintiff must show that: (1) she engaged in

a protected activity; (2) her employer was aware of this activity; (3) she suffered an adverse

action; and (4) a causal connection exists between the alleged adverse action and the protected

activity. Kessler v. Westchester County Dep't of Social Services, 461 F.3d 199, 205-206 (2d

Cir. 2006). Filing a claim to complain of a violation is a "protected activity" (see e.g. Devine v.

Whelan, 1993 W.L. 350049 *3 (S.D.N.Y. 1993, Preska, J)). The causal relationship element

may be established by circumstantial evidence, including that the adverse action followed closely

1 I would like to extend my gratitude to my colleagues who serve with me on NELA's Affiliate Relations committee, including Bruce Fredrickson, Charles Kirwan and David Cashdan, as well as NELA member Robert Fitzpatrick. They made invaluable contributions to this paper.

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in time after the plaintiffs engaged in protected activity. Gordon v. NY City Bd of Educ., 232

F.3d 111, 117 (2d Cir. 2000).

Temporal proximity concerns may arise in situations where retaliatory conduct is alleged

to have occurred after the employee separates from the employer. Nonetheless (particularly with

respect to failure to rehire cases), courts have found temporal proximity to exist in the former

employer-employee relationship, notwithstanding the considerable passage of time between the

protected activity and the retaliatory conduct, building upon the wealth of cases which have held

that temporal proximity between the protected activity and the adverse action should be

measured from the earliest opportunity the employer has to retaliate against the (former)

employee2.

In Templeton v. First Tennessee Bank, 2011 W.L. 1525559 (4th Cir. April 22, 2011), the

4th Circuit held that a former employee stated a viable Title VII retaliation claim regarding her

former employer's refusal to rehire her, despite the passage of approximately two years between

her harassment complaint and employer's refusal to rehire her. The Court reasoned that given

that the employee resigned her employment shortly after complaining of harassment, it is

conceivable that the employer retaliated against at its first opportunity to do so, i.e., when she

expressed interest in being rehired). Id. at *2 (citing Price v. Thompson, 380 F.3d 209,213 (4th

Cir. 2004) "(assuming, without deciding, "that in the failure-to-hire context, the employer's

2 See e.g. Cronin v. St. Lawrence, 2009 WL 2391861 (SDNY Aug. 5, 2009) (trial court denied employer's motion to dismiss, noting that "there is no bright line for temporal proximity, and the time lag at issue here is at least in the range of acceptable time periods, particularly if defendant had no earlier opportunity to retaliate against plaintiff for engaging in protected activity); Bernhardt v. Interbank of N.Y.. 18 F. Supp. 2d 218 (EDNY 2008) (causation was possible despite an II-month lapse between the protected activity and firing because defendant had possible reasons for delaying the adverse action); Magyar v. Saint Joseph Regional Medical Center, 544 F.3D 766, 771 (7fh Cir. 2008). (court rejected defendant's argument that ten-month hiatus between the employee's first complaint and her termination was too long to raise an retaliation inference, holding that reasonable jury could find that relevant event from which employer's conduct should be evaluated was not employee's initial complaint to her supervisor, but her renewed complaint to her employer's general counsel, which occurred only nine days prior to her termination); Hayes v. Shalala, 902 F. Supp. 259, 264 (D.D.C. 1995) (causal connection existed three years after protected conduct based on the time plaintiff first became vulnerable to retaliation.); See also Farrerell v. Planters Lifesavers Co., 206 F.3d 271, 281 (3d Cir. 2008) ("We do note that our pronouncements regarding temporal proximity and causation need to be assessed with the understanding that the relative evidentiary impact of temporal evidence may vary depending upon the stage of the McDonnell Douglas proof analysis, and the procedural circumstance. We caution, therefore, that each case must be considered with a careful eye to the specific facts and circumstances encountered.")

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knowledge coupled with an adverse action taken at the first opportunity satisfies the causal

connection element of the prima facie case"); Dixon v. Gonzales. 481 F.3d 324, 335 (6th Cir.

2007) ("[A] mere lapse in time between the protected activity and the adverse employment

action does not inevitably foreclose a finding of causality. This is especially true in the context

of a reinstatement case, in which the time lapse between the protected activity and the denial of

reinstatement is likely to be lengthier than in a typical employment-discrimination case.");

McGuire v. City of Springfield, Ill., 280 F.3d 794, 796 (7th Cir.2002) (holding that although a

ten-year delay between protected activity and the adverse employment action "was exceedingly

long[,] ... the reason a long wait often implies no causation ... d[id] not apply" in that case

because the employer had no earlier opportunity to retaliate)." (emphasis in the original).

Supreme Court Decisions Addressing Retaliatory Actions by Former Employers

In Robinson v. Shell Oil Co., 519 U.S. 337, 117 S. Ct. 843, 136 L. Ed. 2d 808 (1997), the

Supreme Court unanimously concluded that the Title VII's anti-retaliation provision referencing

employees was ambiguous with respect to the scope of its coverage, and should be read to

encompass former employees in order to further "a primary purpose of anti-retaliation

provisions: Maintaining unfettered access to statutory remedial mechanisms3." Robinson at 346.

In Burlington Northern & Santa Fe Ry. v. White, 548 U.S. 53 (2006), the Supreme Court,

building upon Robinson, held that the anti-retaliation provision of Title VII is not limited to

discriminatory actions that affect the terms and conditions of the plaintiffs employment. Id. at

68. The court reasoned that "[a] provision limited to employment-related actions would not

deter the many forms that effective retaliation can take. Hence, such a limited construction

would fail to fully achieve the antiretaliation provision's "primary purpose," namely,

"[m]aintaining unfettered access to statutory remedial mechanisms." Id. at 64 (quoting Robinson

v. Shell Oil Co., 519 U.S. 337, 346,117 S.Ct. 843, 136 L.Ed.2d 808 (1997)).

3 The Robinson Court further observed that a number of other provisions in Title VII use the term "employees" to mean something more inclusive or different than "current employees." For example, §§ 706(g)(l) and 717(b) both authorize affIrmative remedial action (by a COUIt or EEOC, respectively) "which may include ... reinstatement or hiring of employees." 42 U.S.C. §§ 2000e-5(g)(l) and 2000e-16(b). As petitioner notes, because one does not "reinstat[e]" CUiTent employees, that language necessarily refers to former employees. Likewise, one may hire individuals to be employees, but one does not typically hire persons who already are employees. Id.

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Burlington NOlthern held that"[t]o prevail on a claim for retaliation under Title VII, 'a

plaintiff must show that a reasonable employee would have found the challenged action

materially adverse, which ... means it well might have dissuaded a reasonable worker from

making or suppOlting a charge of discrimination. '" Kessler at 207 (quoting White at 68). As set

forth below, courts have found that there are many contexts in which reasonable workers might

be dissuaded from engaging in protected activity if they know their employer will take adverse

action against them following their separation from the employer.

Retaliatory Lawsuits and Counterclaims

It is well established that "'a lawsuit ... may be used by an employer as a powerful

instrument of coercion or retaliation'" and may dissuade employees from pursuing discrimination

claims4. II EEOC v. Outback Steakhouse of Florida, Inc., 75 F. Supp. 2d 756, 757-58 (N.D. Ohio

1999) (quoting Bill Johnson's Restaurants v. NLRB, 461 U.S. 731, 740-41 (1983)); see also

Rosania v. Taco Bell of America, Inc., 303 F. Supp. 2d 878, 885 (S.D. Ohio 2004) (same);

Jacques v. Dimarzio, Inc., 216 F. Supp. 2d 139, 141-43 (E.D.N.Y. 2002) (dismissing employer's

counterclaim against former employee who alleged discrimination after sua sponte finding it to

be retaliatory); Durham Life Ins. Co. v. Evans, 166 F.3d 139, 158 (3d Cir. 1999) (employer

engaged in post-employment retaliatory conduct where employer filed lawsuit against employee

for breach of non-competition agreement after employee resigned because of sex discrimination).

Indeed, it has been long held that filing a meritless lawsuit against complainants in

discrimination cases can constitute retaliation under federal anti-retaliation laws5• See, e.g., Bill

4 Some courts have also held that an employer's post-employment filing of criminal charges against a former employee who had filed a Title VII charge against that employer constituted unlawful retaliation. See e.g. Berry v. Stevinson Chevrolet, 74 F.3d 980 (lOth Cir. 1996); Walsh v. Irvin Stern's Costumes, 2006 U.S. Dist. LEXIS 57398 (E.D. Pa. Aug. 15, 2006) (Court held that threatening to accuse the plaintiff of theft and seek criminal charges against her unless she withdrew her lawsuit, was an actionable adverse employment action).

5 The same rationale, of course, applies to state retaliation laws as well. For example, I had a client who sued under a Connecticut wage statute which prohibits an employer from taking adverse action against an employee because the employee has filed a claim with the Department of Labor. She had prematurely ended her employment contract and separated from her Connecticut employer after it refused to pay wages due her, then filed a wage claim with the Department of Labor to recoup those wages. Within two weeks of her wage claim, her employer filed an action against her for breach of contract in court even though the parties' contract called for arbitration. In that case, the arbitrator followed the holding in Burlington Northern and determined that the employer's lawsuit constituted an adverse action because had my client known that her wage claim would result in her having to incur almost double the amount of her unpaid wages in attorneys' fees to defend a protracted, meritless lawsuit in an improper forum,

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Johnson's Rests, Inc., v. NLRB, 461 U.S. 731, 743-44 (1983); Durham Life Ins. Co. v. Evans,

166 F.3d 139, 157 (3d Cir. 1999) (employer engaged in post-employment retaliatory conduct

where employer filed lawsuit against employee for breach of non-competition agreement after

employee resigned because of sex discrimination). Hernandez v. Data Sys. Int'l, Inc., 266 F.

Supp. 2d 1285 (D. Kan. 2003); Gill v. Rinker Materials Corp., No. 3:02-CV-13, 2003 U.S. Dist.

LEXIS 2986 *13 (E.D. Tenn. Feb. 24, 2003) (collecting cases); Blistein v. St. John's ColI., 860

F. Supp. 256, 268 n*16 (D. Md. 1994); Stanerson v. Colorado Boulevard Motors, Inc., 2006 U.S.

Dist. LEXIS 80124 (D. Colo. Nov. 2, 2006) (Plaintiff allowed to amend the complaint to claim

that the filing of a counterclaim may constitute retaliation under Burlington Northern. Court did

not address whether a non-frivolous counterclaim may be deemed to be retaliatory); Torres v.

Gristede's Operating Corp., 628 F. Supp. 2d 447, 472 (S.D.N.Y. 2008) (The court held that

"baseless claims or lawsuits designed to deter claimants from seeking legal redress constitute

impermissibly adverse retaliatory actions, even though they do not arise strictly in an

employment context"); Darveau v. Detecon,Inc., 515 F.3d 334, 343 (4th Cir. 2008) (Holding

plaintiff asserting FLSA retaliation claim need only allege that his employer retaliated against

him by engaging in an action "that would have been materially adverse to a reasonable

employee" because the "employer's actions ... could well dissuade a reasonable worker from

making or supporting a charge of discrimination." (citing Burlington Northern. 126 S.Ct. at

2409) and finding that plaintiffs allegation that his employer filed a lawsuit against him alleging

fraud with a retaliatory motive and without a reasonable basis in fact or law constituted

actionable retaliation).

Some cOUlis have held that even where an employer has an otherwise legitimate right to

bring claims against an employee, it nonetheless may be held liable for doing so if the employee

can show that that the lawsuit was brought to retaliate against her for asserting a protected right.

For example, in Arthur Young & Co. v. Sutherland, 631 A.2d 354, 367 (DC Ct. Appeals 1993). a

former employee brought discrimination and retaliation claims against her employer. The

retaliation claim was based upon the employer foreclosing on the employee's property (which

she would have been dissuaded from filing her wage claim. He awarded her the entire cost of her attorneys' fees for defending the frivolous lawsuit.

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served as collateral on a loan to the employee) after the employee complained of discrimination.

The court first noted that, while the employer had the legal right to foreclose, the statute barring

retaliation at issue "contains no safe harbor for otherwise lawful acts done for an improper

retaliatory purpose." The Arthur Young court analogized to federal courts interpreting anti­

retaliation provisions of Title VII of the Civil Right Act: "Under these Title VII decisions, the

fact that the employer may have a valid legal claim does not preclude the employee from

establishing that the employer's motive in asserting the claim was impermissible retaliation." Id.

at 368 (citing EEOC v. Levi Strauss & Co., 515 F. Supp., 640, 644 (N.D. 11. 1981); EEOC v.

Virginia Carolina Veneer Corp., 495 F. Supp. 775, 777-778 (W.D.Va 1980). See also Spencer

v. Int'l Shoppes, Inc., No. 06-CV-2637, 2010 U.S. Dist. LEXIS 30912, 32-33 (E.D.N.Y. Mar.

29, 2010) ("Even if the litigation is not frivolous, it still may be considered retaliatory if

motivated, even partially, by a retaliatory animus.").

A number of courts, however, continue to follow the Supreme Court's holding in Bill

Johnson Restaurants, Inc. v. NLRB, 461 U.S.731 (1983) which acknowledges actionable

retaliation only where the lawsuit or counterclaim at issue is frivolous. See e.g. Spellman v. Am.

Eagle Express, Inc., 680 F. Supp. 2d 188 (D.D.C. Jan. 27, 2010) (In FLSA action, court

permitted defendant's counterclaim for indemnity based on contractual arrangement between the

parties. The court, following the reasoning of Bill Johnson, held that a well-founded lawsuit

may not be enjoined even if it would not have been commenced but for the plaintiffs desire to

retaliate against the defendant for exercising rights protected by federal law); Timmerman v.

U.S. Bank, N.A., 483 F.3d 1106 (lOth Cir. 2007) (Meritorious counterclaim, based on plaintiffs

directing bank funds to her own account, would not support a retaliation claim, relying on Bill

Johnson).

Retaliatory Referencesllnformation Provided to Prospective Employers

Courts have also found retaliatory conduct to exist in situations where the former

employer provides a bad reference or otherwise conveys negative information about the former

employee to a prospective future employer. In Jute v. Hamilton Sundstrand Corp., 420 F.3d 166,

(2d Cir. 2005), Jute claimed that her former supervisor advised an inquiring representative of her

prospective new employer that he could not discuss matters pertaining to Jute because she "had a

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lawsuit pending" against the company, a statement which was false given that she had not

commenced any such suit when the comment was made. Id. at 171. The offer she had received

from that employer was thereafter retracted. The district court dismissed this claim, reasoning

that Jute failed to submit an affidavit from a representative of her prospective employer asserting

that her supervisor's statement caused or contributed to the retracted offer.

The Second Circuit reversed, holding that the district court required Jute to prove too

much. In so holding, it observed that "[a]s a practical matter, it is unlikely that an employee

could secure such evidence, as such an admission would subject a potential employer to Title VII

claims of its own." Id. at 179 (citing McMenemy, 241 F.3d at 284; see also EEOC Compliance

Manual § 8-II(C)(4) (Dec. 5, 2000)). The court thus concluded that "as is true of most Title VII

allegations, to sustain her negative job reference claim Jute is "constrained to rely on

circumstantial evidence." Id. (citing Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 37 (2d

Cir.1994).

The Second Circuit was satisfied that Jute could prove an offer had been made with

evidence from Jute who testified to the offer and her husband who testified that after she got off

the phone with her prospective employer she was so ecstatic she began dancing around the

house. The Court further held that "a reasonable jury, after hearing the defendant's evidence to

the contrary, could find that [the supervisor's] false statement negatively affected Jute's chances

of securing employment." Id. at 178-179 (emphasis in the original) (citing EEOC Compliance

Manual § 8-II(D)(2) (May 20, 1998) (citing as possible example of post-employment retaliation

"actions that are designed to interfere with the individual's prospects for employment.")

More recently, in Coles v. Deltaville, 2011 WL 666050 (ED Va. 2011), the court found

that plaintiff s allegations that his former employer engaged in an outright campaign to ensure

that the plaintiff never worked in this proverbial town (here, industry) again constituted a prima

facie case of retaliation under both Title VII and 42 USC. 1981.

Coles worked for Deltaville as a boat painter and performed his job satisfactorily until,

without explanation, Deltaville terminated Coles' employment. Shortly thereafter, Coles filed a

charge with the Equal Employment Opportunity Commission ("EEOC"), alleging that he was

discharged on account of his race (Coles is African-American). Id. at * 1. Following his

termination from Deltaville, Coles obtained employment with a series of boatyard employers and

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was terminated from each and every job, notwithstanding satisfactory job performance. Id. at

*1-*2.

Plaintiff alleged that his former employer had faxed a copy of the EEOC charge to every

local employer in the industry and that the employer further took it upon himself to personally

contact each and every of plaintiffs successive employers, notify them of the plaintiff's EEOC

complaint, and warn them to "be careful" because they could be next. Id. at * 1. Indeed, one

employer, while terminating plaintiff, actually stated to him: "I suppose you are going to file a

charge against me like you did against [your former employer]." Id. In rejecting defendant's

contention that plaintiff failed to establish his former employer's retaliatory intent, the court

wryly observed that "[o]ne may reasonably infer from such a statement that [Coles' former

employer] did not describe Coles' protected activity in a particularly favorable light." Id. at *6.

The court also declined to accept the defendant's causation argument which would have

required Coles to demonstrate that "but for" the retaliatory acts, Coles would not have been

terminated. Id. at *6. The court noted that Title VII provides that "an action constitutes

unlawful retaliation if taken '''because [the employee] has made a charge.'" Id. (quoting 42

U.S.C. § 2000e-3(a». The court held that "the plaintiff may prove causation therefore, merely

by showing that "but for" the charge, the employer would not have taken the action" and need

not meet the higher standard of showing that but for the employer's actions he would not have

been terminated Id. at *6 (emphasis in the original) (quoting Ross v. Communications Satellite

Corp., 759 F.2d 355, 365 (4th Cir.1985) (emphasis added), overruled on other grounds by Price

Waterhouse v. Hopkins, 490 U.S. 228 (1989».

In denying defendant's motion to dismiss Cole's retaliation claim, the court concluded

that one may reasonably infer that Cole's former employer was informing each of Coles' new

employers about the EEOC charge in order to prevent Coles from obtaining employment, and

that such acts constitute direct retaliation for filing the EEOC charge.

Retaliatory Opposition to Employee's Application for Unemployment Benefits

Retaliatory conduct has also been found in meritless oppositions to an employee's

application for unemployment employment benefits. In Liverpool v. Conway, Inc. et aI, 2009

WL 1362965 (E.D.N.Y. 2009), Liverpool alleged that he filed for unemployment benefits and

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prevailed after Con-Way contested his eligibility. He further contended that Con-Way retaliated

against him for having filed the claim by disseminating false and damaging information about

him to prospective employers. The defendants asserted, among other claims, that Liverpool

cannot state a claim under New York's Labor law6 (which would have otherwise protected him)

because "he was not an employee at the time of the alleged tort." Id. at * 11.

The court observed that "[a]t first blush, 'the term employee 'would seem to refer to

those having an existing employment relationship with the employer in question." Id. The Court

noted that while there was no New York caselaw interpreting whether and when the term

"employee" encompasses former employees, the Supreme Court addressed this issue in the

context of the anti-retaliation provision of Title VII of the Civil Rights Act of 19647 in Robinson

v. Shell Oil Co., 519 U.S. 337, 117 S. Ct. 843 (1997). Id. at *11 (citing Robinson at 346). The

Liverpool court concluded that the Labor Law definition of employee was similarly ambiguous

and like Robinson, the Liverpool court resolved the ambiguity in favor of construing the statute

to protect the former employee. Id. at *12.

Many other courts have similarly concluded that retaliation can take the form of a

meritless opposition to unemployment benefits. See, e.g., Steele v. Shafer, 535 F.3d 689, 696

(D.C. Cir. 2008) (reversing dismissal of retaliation claim when trial court did not consider

employer's opposition to unemployment claim as retaliatory conduct against fired employee who

had complained of unlawful conduct while employed); Williams v. W.D. Sports, Inc., 497 F.3d

1079, 1088-91 (10th Cir. 2007) ("We do not question that proof suggesting claimant's

unemployment benefits were denied or suspended, even for a period of time, would suffice to

6 Section 215 of New York's Labor Law provides in pertinent part that:

No employer or his agent, or the officer or agent of any corporation, shall discharge, penalize, or in any other manner discriminate against any employee because such employee . . . has caused to be instituted a proceeding under or related to this chapter, or because such employee has testified or is about to testifY in an investigation or proceeding under this chapter.

N.Y. Lab. Law § 215(1).

7 The provision at issue in Robinson made it unlawful "'for an employer to discriminate against any of his employees .. .' who have either availed themselves of Title VII's protections or assisted others in so doing." Id. at 339 (citing 42 U.S.C. § 2000e-3(a)).

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state a claim for relief in appropriate cases" and the result would not change even if claimant

won the claim for unemployment benefits because "[w]e do not doubt that a reasonable

employee could well find such a combination of threats and actions taken with the design of

imposing both economic and psychological harm sufficient to dissuade him or her from making

or supporting a charge of discrimination"); Betts v. Container Corp, 1997 U.S. App. LEXIS

10648 (7th Cir. May 7, 1997); Grace v. Starwood Hotels & Resorts Worldwide, Inc., 2008 U.S.

Dist. Lexis 10951 (W.D. Pa. Feb. 14, 2008), and Wright v. Life Start Centers, Inc., 2000 U.S.

Dist. Lexis 16424, at 8-9 (N.D. Ill. October 19, 2000) (employer's false statements that results in

initial denial of unemployment benefits is adverse action).

Retaliatory Refusal to HirelRe-Hire Qualified Candidate

Actionable retaliation has also been found in the employer's refusal to hire an otherwise

qualified candidate who engaged in protected conduct. See, e.g., Flowers v. Columbia College

Chicago, 397 F.3d 532, 533 (7th Cir. 2005) ("[s]uppose that Flowers had worked at General

Motors before entering the College's employ, and that the College fired him on learning that he

had complained about General Motors's failure to accommodate his desire to wear religious garb.

Again § 2000e-3(a) would entitle Flowers to relief; no one may follow the rule "we do not

employ anyone who has ever made a Title VII charge against a prior employer."); McMenemy v.

City of Rochester, 241 F.3d 279, 284 (2nd Cir. 2001) ("We think that Title VII protects an

employee from any employer, present or future, who retaliates against him because of his prior

or ongoing opposition to an unlawful employment practice or participation in Title VII

proceedings.") See also EEOC Compliance Manual §8-II(C)(4) ("A violation would be found if

a respondent refused to hire the charging party because it was aware that she filed an EEOC

charge against her former employer." It is the EEOC's position that Section 704(a) prohibits any

adverse treatment that is based on a retaliatory motive and is reasonably likely to deter the

charging patty or others from engaging in protected activity. Id. at §8-II(D)(3).

4th Circuit: FLSA 's Anti-Retaliation Provision Does Not Protect Job Applicants

Not every statutory anti-retaliation provision has been interpreted to protect the non­

employee. Recently, in the first ruling on this issue by a comt of appeals, the U.S. Comt of

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Appeals for the 4th Circuit ruled that a job applicant camlot bring a retaliation lawsuit against a

prospective employer under the Fair Labor Standards Act ("FLSA"), holding that the FLSA's

anti-retaliation protections do not extend to prospective employees. Dellinger v. Science

Applications Intemational Corp, 2011 WL 3528750 (4th Cir. 2011).

In Dellinger, the plaintiff sued her former employer alleging a violation of the FLSA's

minimum wage and overtime laws. During this same time frame she also applied for a job with

Science Applications and disclosed the lawsuit when filling out a security clearance form

required for the position. Several days after Dellinger submitted that form, Science Applications

withdrew its employment offer. Dellinger sued Science Applications, alleging that the

company's withdrawal of its job offer was "retaliation and unlawful discrimination based on Ms.

Dellinger's exercise of her protected right to file an FLSA lawsuit." Id. at * 1.

The court ruled that Congress' use of the word "employee" in the anti-retaliation

provision indicates that it intended the FLSA to protect "those in an employment relationship

with their employer." Id. at *2. The Court reasoned that "the anti-retaliation provision was

meant to ensure that employees could sue to obtain minimum wages and maximum hours from

their employers without the employers taking adverse action against them for the exercise of

those rights," and that "this purpose is inherent in the employment relationship, which is the

context in which the substantive provisions operate." Id. at *4.

According to the Dellinger court, the anti-retaliation provision is not Palt of the law as "a

free-standing protection against any societal retaliation," but instead is an attempt to foster

compliance with the act. Id. While the COUlt claimed that it was "sympathetic to Dellinger's

argument" that enabling future employers to discriminate against prospective employees for

having exercised their FLSA rights in the past "could be problematic," the COUlt noted that "The

notion, however, that any person who once in the past sued an employer could then sue any

prospective employer claiming that she was denied employment because of her past litigation

would clearly broaden the scope of the FLSA beyond its explicit purpose of fixing minimum

wages and maximum hours between employees and employers." Id.

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The Dellinger dissenting OpInIOn, authored by Judge King, discussed at length the

Robinson v. Shell Oil Co., decision (which reversed an en bane 4th Circuit ruling), and observed

that prior to that ruling "few imagined that a f01IDer employee could successfully sue under Title

VII of the Civil Rights Act of 1964." Id. at *5. Judge King commented that "[t]he majority

affirms with no discussion of Robinson or its established methodology, giving its thumbs-up to

the company's conduct and paving the way for other employers to adopt similar practices." Id. at

*9. While Robinson was not an FLSA case, the dissenting opinion noted that "its analytical

framework readily admits of a more widely reaching application, and it should therefore

powerfully inf01ID our analysis of Dellinger's appeal" and that ""It would hardly be a stretch to

interpret the FLSA to permit Ms. Dellinger's action, particularly considering that other, similar

remedial statutes8 already apply to employees in her situation." Id. at *8.

It may be time for the Supreme Court to consider this issue in the context of the FLSA.

The U.S. Department of Labor and the Equal Employment Opportunity Commission filed ajoint

amicus brief supp01iing Dellinger. A Labor DepaIiment spokesperson stated that the agency is

"reviewing the decision and considering our options." An EEOC spokesperson said the agency

"is studying the decision" and had no comment at this time.

Conclusion

As the discussion above indicates, in this post Burlington Northern world, fonner

employers may be found to have engaged in actionable retaliation against their former

employees in a variety of contexts. It would behoove the former employer before taking action

concerning the former employee to pause and carefully consider the ramifications of such action.

8 Such statutes include the National Labor Relations Act and the Occupational Safety and Health Act.

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