Suing a Whistleblower Can Give Rise to a Retaliation Claim
Filing a lawsuit without a sufficient factual basis to dissuade a whistleblower or discrimination plaintiff from engaging in protected conduct can constitute actionable retaliation. See, e.g., Darveau v. Detecon, Inc., 515 F.3d 334, 340-341 (4th Cir. 2008); Gortat v. Capala Bros., 2011 U.S. Dist. LEXIS 149731 (E.D.N.Y. Dec. 30, 2011); Pinkett v. Apex Communs. Corp., 2009 U.S. Dist. LEXIS 34053, 9-12 (E.D. Va. Apr. 21, 2009). Sham litigation is not protected by the First Amendment. Rosania v. Taco Bell of Am., Inc., 303 F. Supp. 2d 878, 883 (N.D. Ohio 2004). See also Gill v. Rinker Materials Corp., No. 3:02-CV-13, 2003 U.S. Dist. LEXIS 2986 (E.D. Tenn. Feb. 24, 2003) (claim brought “not in good faith and instead motivated by retaliation, can be the basis for a claim under Title VII”); Gliatta v. Tectum Inc., 211 F. Supp. 2d 992, 1009 (S.D. Ohio 2002) (lawsuit brought in bad faith with retaliatory motivation prohibited by Title VII); Torres v. Gristede’s Operating Corp., 628 F. Supp. 2d 447, 472 (S.D.N.Y. 2008) (“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”); Stanerson v. Colorado Boulevard Motors, Inc., No. 06-cv-00856, 2006 U.S. Dist. LEXIS 80124 (D. Colo. Nov. 2, 2006); Nesselrotte v. Allegheny Energy, Inc., No. 06-01390, 2009 U.S. Dist. LEXIS 20767, 39-43; 45-46 (W.D. Pa. Mar. 16, 2009) (counterclaims and lawsuit against plaintiff’s spouse’s company can constitute retaliation under Burlington Northern standard); Rosania v. Taco Bell of America, Inc., 303 F.Supp.2d 878 (N.D. Ohio 2004) (employer’s filing of counterclaim was adverse employment action for purpose of retaliation); E.E.O.C. v. Outback Steakhouse of Florida, 75 F. Supp. 2d 756 (N.D. Ohio 1999) (same).
Indeed, threatening to sue a whistleblower can be actionable retaliation. See Brach v. Conflict Kinetics Corp., Case No. 1:16-cv-978 (E.D. Va. Dec. 1, 2016).
In a whistleblower action brought under Section 11(c) of the Occupational Safety and Health Act, the Secretary of Labor made the following argument in a motion for summary judgment:
Lawsuits filed with the intent to punish or dissuade employees from exercising their statutory rights are a well- established form of adverse action. See BE & K Constr. Co. v. NLRB, 536 U.S. 516, 531 (2002) (Finding that a lawsuit that was both objectively baseless and subjectively motivated by an unlawful purpose could violate the National Labor Relations Act’s prohibition on retaliation); Torres v. Gristede’s Operating Corp., 628 F. Supp. 2d 447, 472 (S.D.N.Y. 2008) (“Courts have held that baseless claims or lawsuits designed to deter claimants from seeking legal redress constitute impermissibly adverse retaliatory actions.”); Spencer v. Int’l Shoppes, Inc., 902 F. Supp. 2d 287, 299 (E.D.N.Y. 2012) (Under Title VII, the filing of a lawsuit with a retaliatory motive constitutes adverse action).
See these related posts and FAQs:
- Court Rules that Whistleblowers Can Use Confidential Company Documents to Expose Fraud
- Retaliatory Lawsuit Against Whistleblower Dismissed on Summary Judgment
- False Claims Act Decision Recognizes Public Policy Exception to Confidentiality Agreements
- De Facto Gag Clauses: The Legality of Employment Agreements That Undermine Dodd-Frank’s Whistleblower Provisions
- 5 Questions To Ask Before Suing Over Whistleblower Theft
- Forbes Quotes Whistleblower Attorney Jason Zuckerman About Self-Help Discovery in Whistleblower Litigation
- Can Whistleblowers Disclose Secret Recordings to the SEC?
What Damages Can Whistleblowers Recover in Whistleblower Retaliation Cases?whistleblower_lawyers_012017_infographic
Some courts have held that when an employer responds to a lawsuit that has alleged, unlawful reprisal by bringing a lawsuit against that employee, that the lawsuit, itself, is an act of unlawful retaliation. The reason is that the lawsuit by the employer is meant to prevent the employee from exercising his right to proceed with a claim of reprisal.