A strong retaliation case, therefore, must provide evidence that demonstrates the following: He or she experienced or witnessed discrimination or harassment. He or she engaged in a protected workplace activity. His or her employer took a negative action against them in response.

Test for Retaliation:

On a retaliatory discrimination claim, employee must prove that (1) she reasonably and in good faith believed that employer was engaged in wrongful discrimination, (2) that she acted reasonably in response to her belief, and (3) that employer's desire to retaliate against her was a determinative factor in its decision to terminate her employment. Tate v. Dept. of Mental Health, 645 N.E.2d 1159 (Mass. 1995).

To establish a prima facie case of retaliation under Title VII, employee must show: (1) she engaged in protected conduct; (2) she suffered an adverse employment action; and (3) that a causal nexus exists between the protected conduct and the adverse action. Civil Rights Act of 1964 § 704, 42 U.S.C.A. § 2000e-3(a). Lopez-Hernandez v. Terumo Puerto Rico LLC, 64 F.4th 22 (1st Cir. 2023).

• An “adverse employment action,” as required for a prima facie case of retaliation under Title VII, is one that a reasonable employee would find materially adverse, which means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination. Civil Rights Act of 1964 § 704, 42 U.S.C.A. § 2000e-3(a). Hudson v. Lincare, Inc., 58 F.4th 222 (5th Cir. 2023)
• For there to be “protected activity,” the evidence must show that a person opposed a recipient’s actions that the person reasonably and in good faith believed violated Title VI or participated in a matter that reasonably or in good faith alleged a violation. Bigge v. Albertsons, Inc., 894 F.2d 1497, 1503 (11th Cir. 1990).
• A complainant or agency could establish retaliation under one of two methods:
  • Direct method of proof- complainants must “offer evidence that [they] engaged in a statutorily protected activity, that the defendants subjected [them] to an adverse employment action, and that a causal connection exists between the two events.” Gates v. Caterpillar, Inc., 513 F.3d 680, 686 (7th Cir. 2008). Under this evidence method, a plaintiff must present evidence of discriminatory intent that does not require support from inferences.
  • Indirect method of proof- involves use of circumstantial evidence that the individual’s protected activity led to an alleged adverse action, either wholly or in part, in response to the individual’s protected conduct. Temporal proximity between the complainant’s protected activity and the recipient’s adverse actions often is relevant to a determination of causation.

To assert a claim for whistleblower retaliation, the plaintiff must establish, by a preponderance of the evidence, that retaliation for an employee's protected activities was a contributing factor in a contested employment action; once the plaintiff has made the required showing, the burden shifts to the employer to demonstrate, by clear and convincing evidence, that it would have taken the action in question for legitimate, independent reasons even had the plaintiff not engaged in protected activity. Killgore v. SpecPro Prof. Services, LLC, 51 F.4th 973 (9th Cir. 2022)

Title VII Retaliation:

Title VII of the Civil Rights Act of 1964 forbids employment discrimination based on “race, color, religion, sex, or national origin,” 42 U.S.C. § 2000e–2(a), and its antiretaliation provision forbids “discriminat[ion] against” an employee or job applicant who, inter alia, has “made a charge, testified, assisted, or participated in” a Title VII proceeding or investigation, § 2000e–3(a). The anti-discrimination provision seeks a workplace where individuals are not discriminated against because of their status, while the antiretaliation provision seeks to prevent an employer from interfering with an employee's efforts to secure or advance enforcement of the Act's basic guarantees. To secure the first objective, Congress needed only to prohibit employment-related discrimination. But this would not achieve the second objective because it would not deter the many forms that effective retaliation can take, therefore failing to fully achieve the antiretaliation provision's purpose of “[m]aintaining unfettered access to statutory remedial mechanisms,” Robinson v. Shell Oil Co., 519 U.S. 337, 346, 117 S.Ct. 843, 136 L.Ed.2d 808. Thus, purpose reinforces what the language says, namely, that the antiretaliation provision is not limited to actions affecting employment terms and conditions. The antiretaliation provision covers only those employer actions that would have been materially adverse to a reasonable employee or applicant. A retaliation plaintiff must show that the challenged action “well might have ‘dissuaded a reasonable worker from making or supporting a charge of discrimination.’ ” Rochon v. Gonzales, 438 F.3d 1211, 1219. The Court refers to material adversity to separate significant from trivial harms. The anti-retaliation provision seeks to prevent employer interference with “unfettered access” to Title VII's remedial mechanisms by prohibiting employer actions that are likely to deter discrimination victims from complaining to the EEOC, the courts, and employers.

• Title VII retaliation provision contains materiality requirement and objective standard; thus, provision requires showing that reasonable employee would have found employer's challenged action materially adverse, i.e. that challenged action could well dissuade reasonable employee from protected conduct. Civil Rights Act of 1964, § 704(a), 42 U.S.C.A. § 2000e-3(a).
• Reassignment of duties can potentially constitute retaliatory discrimination within scope of Title VII retaliation provision, even though unaccompanied by demotion; whether reassignment rises to level of retaliation depends on whether it is materially adverse to reasonable employee. Civil Rights Act of 1964, § 704(a), 42 U.S.C.A. § 2000e-3(a).
• In Title VII retaliation action, while temporal proximity is one factor from which an employer's bad motive can be inferred, by itself, it is not enough, especially if the surrounding circumstances undermine any claim of causation. Civil Rights Act of 1964 § 704, 42 U.S.C.A. § 2000e-3(a).
• When direct evidence of Title VII retaliation is lacking, court utilizes McDonnell Douglas burden-shifting framework. Civil Rights Act of 1964 § 704, 42 U.S.C.A. § 2000e-3(a).
  • Under McDonnell Douglas burden-shifting framework, once employee makes out prima facie case of retaliation under Title VII, burden shifts to employer to articulate a legitimate, nonretaliatory explanation for its actions; if employer is able to do so, burden then returns to employee to show that employer's explanation is pretext for retaliation. Civil Rights Act of 1964 § 704, 42 U.S.C.A. § 2000e-3(a).
• Racial discrimination claims under §1981 are analyzed under the same standards as is Title VII. 42 U.S.C.A. § 1981; Civil Rights Act of 1964 § 703, 42 U.S.C.A. § 2000e-2(a)(1).
• An employment decision is not an adverse action, for purposes of a Title VII retaliation claim, if it does not objectively worsen the employee's working conditions. Civil Rights Act of 1964 § 704, 42 U.S.C.A. § 2000e-3(a).
• On a “cat's paw” theory of retaliation under Title VII, retaliatory co-workers manipulate the decisionmaker into taking what appears to the decisionmaker to be a non-retaliatory action. Civil Rights Act of 1964 § 704, 42 U.S.C.A. § 2000e-3(a).
• Temporal proximity between protected conduct and retaliation can sometimes suffice to establish causation element of a prima facie case of retaliation under Title VII. Civil Rights Act of 1964 § 704, 42 U.S.C.A. § 2000e-3(a).
• For purposes of a Title VII retaliation claim, one cannot retaliate without any knowledge of the protected activity. Civil Rights Act of 1964, § 701 et seq., 42 U.S.C.A. § 2000e et seq.
• Examples of adverse employment actions, for purposes of a Title VII retaliation claim, include demotions, disadvantageous transfers or assignments, refusals to promote, unwarranted negative job evaluations, and toleration of harassment by other employees. Civil Rights Act of 1964, § 701 et seq., 42 U.S.C.A. § 2000e et seq.
• The anti-retaliation provision of Title VII protects an individual not from all retaliation, but from retaliation that produces an injury or harm. Civil Rights Act of 1964, § 701 et seq., 42 U.S.C.A. § 2000e et seq.

Whistleblower Retaliation:

• The absence of probative evidence as to any single element necessary to establish a prima facie claim under the whistleblower provision of the Federal Railroad Safety Act (FRSA) terminates the action. 49 U.S.C.A. §§ 20109, 42121(b). Fresquez v. BNSF Ry. Co., 52 F.4th 1280 (10th Cir. 2022)
• If the employee establishes a prima facie case under the whistleblower provision of the Federal Railroad Safety Act (FRSA), the burden switches to the employer to demonstrate clear and convincing evidence that the employer would have taken the same unfavorable personnel action in the absence of the employee's protected activity. 49 U.S.C.A. §§ 20109, 42121(b)(2)(B)(iv). Fresquez v. BNSF Ry. Co., 52 F.4th 1280 (10th Cir. 2022)
• An employer may not retaliate against an employee when the employee has reasonable cause to believe that the information discloses a violation of state or federal statute or of a local, state, or federal rule or regulation, regardless of whether disclosing the information is part of the employee's job duties. Cal. Lab. Code § 1102.5.

Key Things to Listen for When Taking a Retaliation Fact Pattern:

• Was the real basis for termination based on the employer’s desire to retaliate against the caller? Is there sufficient, concrete proof of this?
• Is there any proof that the real basis for the caller’s termination was directly or reasonably related to unlawful discrimination against them?
• What is the timeline of relevant events? How close together did they occur? (Temporal proximity)
• But-for causation
• Does the employer or have reason to know that the caller is a member of a protected class or that the performed action was protected?
• What were the adverse employment actions taken against the caller? Is there proof that this action is directly related or has a causal connection to the protected class membership or protected act?

Temporal Proximity

Retaliation claim could also be based on conduct that occurred after an employee’s discharge; therefore, a substantial, nearly 50 percent, reduction in an employee’s severance package immediately after the employee’s attorney wrote the employer regarding possible discrimination concerns was circumstantial evidence of retaliation that would require resolution at trial. Donaldson v. Akibia, Inc., 20 Mass. L. Rep. 318, 2005 Mass. Super. LEXIS 620 (Mass. Super. Ct. 2005).

Retaliation claim was adequately pleaded because complaints, retention of counsel, and notes about disparate treatment qualified as protected activity, placement on administrative leave could constitute adverse employment action, and temporal proximity permitted an inference of causation. Claims of unlawful interference, aiding and abetting, and failure to investigate also survived a motion to dismiss because individuals were alleged to be perpetrators and the latter two claims were derivative. Freadman v. Mass. Port Auth., 2022 Mass. Super. LEXIS 20 (Mass. Super. Ct. Jan. 6, 2022).

Former employee’s claim of retaliation, in violation of ALM GL c 151B, § 4(1), was unsuccessful because the only protected activity that the employee could be considered to have engaged in was complaining about a quality assurance supervisor’s comment, which occurred some two years before the employee was discharged. Any allegation that the comments affected the employee’s performance evaluations was unsupported by the record. Thompson v. Coca-Cola Co., 522 F.3d 168, 2008 U.S. App. LEXIS 8029 (1st Cir. Mass. 2008).

In this Massachusetts anti-discrimination law action, the denial of the employee’s motion for a new trial was affirmed because no rational, properly instructed jury could find that the employer fired the employee in retaliation for sending it where the employer’s decision to discharge the employee was made more than a year after the e-mail. Dias v. Verizon New Eng. Inc., 566 Fed. Appx. 1, 2014 U.S. App. LEXIS 10493 (1st Cir. Mass. 2014).

To plausibly plead causality, the temporal proximity between an employer's [*13] knowledge of protected activity and an adverse employment action must be very close. See Calero-Cerezo v. U.S. Dep't of Justice, 355 F.3d 6, 25 (1st Cir. 2004). A "tight fit" is required, and a gap of several months cannot alone ground an inference of a causal connection between protected conduct and an allegedly retaliatory action. See Arroyo-Ruiz v. Triple-S Mgmt. Grp., 206 F. Supp. 3d 701, 716-717 (D.P.R. 2016) (citing Ahern v. Shinseki, 629 F.3d 49, 58 (1st Cir. 2010)). A time period of five (5) months or less between the employer's knowledge of protected conduct and the adverse employment action has been held to sufficiently sustain Plaintiff's causal link burden for a motion to dismiss. See Garayalde-Rijos, 747 F.3d at 25. However, "some pleadings may allege a temporal gap so attenuated as not to meet the plausibility standard for surviving a motion to dismiss." Id.

Erasto Roman-Mercado v. Hyannis Air Servs., No. 20-1228 (ADC), 2022 U.S. Dist. LEXIS 104044 (D.P.R. Mar. 31, 2022)

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