Now, THIS is a retaliation lawsuit worthy of becoming a bar exam question.


Sometimes, when deciding whether to blog about a recent federal court decision, I skip the “Factual Background” section and go right to the “Discussion.” That’s where I usually find the most concise, “meat-and-bones” explanation of what the case is about.

I did that last night when I read this Minnesota federal court decision involving race discrimination and retaliation.

With minimal context, I begin about five pages in to the decision. That’s where I read that the defendant, a Fortune 100 company, “does not dispute that [the plaintiff] has established the requisite causal connection between the EEOC complaint and her firing.” Indeed, noted the court, the defendant terminated the plaintiff’s employment given the content of her EEOC complaint.

To prove retaliation, a plaintiff must establish three elements:

  1. she engaged in a protected activity (e.g., filing an EEOC charge),
  2. she suffered an adverse employment action, and
  3. “No. 1” caused “No. 2”

(Somewhere, my kids are chuckling about that third element of a retaliation claim. Anyway…)

Now, I’m laughing at what I wrote also thinking to myself that this is a very sophisticated employer with a strong in-house legal department and, no doubt, very expensive outside counsel has lost its damn mind!

So, I need context. Here it is.

The plaintiff worked in the defendant’s legal department. To help prove her underlying race discrimination claim, she and her counsel attached unredacted privileged documents to her EEOC Charge and filed them with the EEOC (a third party). So, once the defendant got wind of this, it investigated and fired her.

Ah, that makes more sense.

The defendant didn’t fire the plaintiff because she complained about discrimination. Rather, it fired her because she shared privileged documents with a third party to support her underlying complaint of discrimination.

Or so it says.

In a retaliation case, there is a shifting burden from the plaintiff (to establish a facially plausible claim of retaliation) to the defendant (to articulate a legitimate business reason for the adverse employment action it took) and back to the plaintiff to show how the defendant’s reason is a pretext for retaliation.

Here, the plaintiff argued that the defendant “lured” her into providing the documents to third parties so that it could terminate her employment.

While that sounds rather farfetched, the court concluded “the facts in the record are sufficient to support such a theory.”

First, the defendant knew that the plaintiff believed the documents to be necessary to her claims because she attached them to the appeal of her performance review. Second, the defendant and the plaintiff’s lawyer negotiated for months before she filed at the EEOC. During those negotiations, the plaintiff’s lawyer apparently referenced the documents as evidence of discrimination. Yet, the employer did nothing to caution the lawyer about using them in any possible future complaint, let alone question the lawyer, a third party, about access to the documents. Third, the plaintiff did not know of any internal policy prohibiting her from using privileged documents to support a performance review appeal.

So, who wins? That’s for a jury to decide.

Folks, if you have policies and procedures that you want employees to follow, here are some tips:

  1. Put them in writing,
  2. Communicate them to your employees,
  3. Remind them of the policies,
  4. Explain the ramifications for violating the policies,
  5. Repeat steps 1-4 when a situation like this one arises.
“Doing What’s Right – Not Just What’s Legal”
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