A jury returned a verdict of almost $1 million to a former employee in New Jersey who was retaliated against and the state’s appellate court has now affirmed the verdict. Retaliation claims are the single most common type of complaint received by the U.S. Equal Employment Opportunity Commission (EEOC).

Protection against retaliation is an essential tool in helping to prevent discrimination as both victims and witnesses must feel free to object to and report unlawful behavior if the anti-discrimination laws are to have any meaningful effect.

The jury verdict in Mallon v. Hudson City Savings Bank, et al., Do. No. A-4438-16T1, p. 5 (N.J. Sup. Ct. 2019), centered on New Jersey’s anti-discrimination law that prohibits employers from retaliating against employees who complain about unlawful discrimination. In February 2019, a state appellate court in New Jersey affirmed a $935,000 jury verdict in a retaliation case brought under New Jersey’s state Law Against Discrimination.

Fact background

Plaintiff Santa Mallon had worked at Hudson City Savings Bank since 1975. Over her career, she had numerous conversations with her supervisor about her concerns of gender discrimination and a glass ceiling keeping her from being promoted.

In August 2010 she told a bank executive that she wanted “the same respect” and salary “as the males,” and a promotion to Senior Vice President. Later, in January 2011, Mallon’s supervisor recommended that she be promoted to Senior Vice President. But in March 2011, Hudson City informed Mallon that she was under investigation for violating company policies, including letting her husband use her employee ID card and improperly transferring ownership of her family’s personal bank accounts.

In June 2011, the investigation resulted in Mallon’s transfer from a position overseeing 60 people to 10 people. Viewing this as an adverse employment action, Mallon told the Chief Operating Officer and the HR Vice President the next month that “there appears to be an underlying agenda that can only make me think this is a discriminatory action against me”, asserting that the “accusations and the unfair depth of punishment were instituted because of my request for promotion.”

The COO responded that “Hudson has not, and will never, discriminate against any employee for any reason”, pointing to the diverse composition of the executive board.

Mallon was terminated in September 2011. Then in 2013, she filed charges under the New Jersey Law Against Discrimination, alleging that Hudson City had retaliated against her for complaining about discrimination.

A jury found that Hudson City did retaliate against Mallon and awarded her $935,000. Hudson City appealed the jury’s decision, and the New Jersey appellate court affirmed the jury’s verdict.

Legal elements of a retaliation claim

To prevail on a claim of retaliation, a plaintiff must establish the following elements:

• They engaged in protected activity that was known to the employer;
• Employer took an adverse employment action against the employee, such as termination; and
• Protected activity caused the adverse employment action

In Mallon, the appellate court denied Hudson City’s motion for a new trial because it found Mallon did engage in protected activity of which Hudson City knew.

First, Mallon had multiple conversations with her immediate supervisor regarding gender discrimination in which she referred specifically to a glass ceiling that prevented her from being promoted.

Second, by acknowledging diversity and denying any discrimination, Hudson City’s response to Mallon’s July 2011 complaint demonstrated that it understood the complaint to be related to unlawful discrimination.

Third, Hudson City repeatedly refused to investigate Mallon’s complaints “apparently in the belief that they lacked merit.” The Chief Operating Officer dismissed her complaints because HR employees knew “all the right words” to complain about discrimination.

Ultimately, the court found that these facts are consistent with the conclusion “that defendants would have rejected any discrimination complaint made by plaintiff, regardless of the specific words used.” The court explained that, under the New Jersey Law Against Discrimination, “there are no magic words for expressing a complaint of discrimination”. “As long as the complaint is made in a good faith belief that the conduct complained of violates the LAD, it suffices for purposes of pursuing a cause of action.”

Key takeaways

In considering retaliation claims, it is important to consider:

• if you are going to report what you believe to be unlawful behavior, it is helpful to be as clear as possible that you are complaining about discrimination and, in terms of evidence to prove a claim of retaliation, a written complaint is often more persuasive evidence;
• Under Title VII and certain related statutes, employees must show that the employer would not have taken the adverse action, “but for” the retaliatory motive. Although the motive to retaliate against an employee for their protected activity need not be the sole cause of the action, the employee must show that, absent their protected activity, the employer would not have taken action against them.
• To show unlawful retaliation, the evidence must show that it is more likely than not that retaliation has occurred. While direct evidence of the employer’s retaliatory motive occasionally exists (“We fired Joe Smith because he filed an EEOC charge”), more often, an employee relies on circumstantial evidence to prove retaliation.
  • For example, a causal link can be established by showing that the adverse action took place shortly after the employee engaged in protected activity.
• Causal links can also be established by a) analysis of whether similarly situated employees who did not engage in protected conduct were treated more favorably; b) an employer’s shifting or inconsistent reasoning for the adverse action; or c) oral or written statements that reveal retaliatory animus towards the employee, predetermined decisions, or indication that other reasons given for the action are in fact pretext for retaliation.

Co-author: Isabella Havas