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Is a lawsuit against a whistleblower actionable retaliation?


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).

To learn more about whistleblower rewards or whistleblower protections, call the whistleblower lawyers at Zuckerman Law at 202-262-8959, or click here.

See these related posts and FAQs:

What Damages Can Whistleblowers Recover in Whistleblower Retaliation Cases?

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.

Whistleblower Retaliation Lawyers

Our experienced whistleblower retaliation lawyers have substantial experience litigation whistleblower retaliation cases nationwide, including claims under the Sarbanes-Oxley whistleblower protection law.  To schedule a confidential consultation, call us at 202-262-8959 or send us a message.

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Described by the National Law Journal as a “leading whistleblower attorney,” founding Principal Jason Zuckerman has established precedent under a wide range of whistleblower protection laws and obtained substantial compensation for his clients and recoveries for the government in whistleblower rewards and whistleblower retaliation cases.  Three of the cases he worked on are featured in Tom Mueller’s seminal book about whistleblowing Crisis of Conscience: Whistleblowing in an Age of Fraud and Dan Maldea’s Corruption in U.S. Higher Education: The Stories of Whistleblowers.  The False Claims Act qui tam cases that Zuckerman has worked on in conjunction with other attorneys have resulted in recoveries in excess of $100 million, and he has secured settlements above $1 million in eight SOX whistleblower retaliation matters.

In 2019, the National Law Review awarded Zuckerman its “Go-To Thought Leadership Award” for his analysis of developments in whistleblower law, and Washingtonian magazine has named two of our attorneys to its list of Top Whistleblower Attorneys.  U.S. News and Best Lawyers® have named Zuckerman Law a Tier 1 firm in Litigation – Labor and Employment in the Washington DC metropolitan area in the 2020 edition “Best Law Firms.”

Jason Zuckerman, Principal of Zuckerman Law, litigates whistleblower retaliation, qui tam, wrongful discharge, and other employment-related claims. He is rated 10 out of 10 by Avvo, was recognized by Washingtonian magazine as a “Top Whistleblower Lawyer” in 2015 and selected by his peers to be included in The Best Lawyers in America® and in SuperLawyers.