/>i“Retaliation is related to nature and instinct, not to law. Law, by definition, cannot obey the same rules as nature.”1
I. Introduction
Starting in 2009, for the first time ever, retaliation claims became the most common individual charge filed with the Equal Employment Opportunity Commission (EEOC).2 Indeed, while the total number of charges filed with the EEOC dropped by over 500from 2010 to 2012, the number of retaliation charges increased byover 1,500 in the same time period, accounting for more thanthirty-eight percent of all individual charges filed.3
This increasehas been building for more than a decade—from 1997 to 2012, thetotal number of charges increased by about twenty-four percent, while the number of retaliation charges more than doubled.4 Over the same period, the monetary benefits reported by the EEOC onretaliation charges increased by over $135 million, with a nearlythirty-three percent year-over-year increase from 2006 to 2007—theyear after the Supreme Court’s Burlington Northern & Santa Fe Railway Co. v. White5 decision.6
Fiscal year 2012 also saw another big jump, with total monetary benefits of $177.4 million reported by the EEOC on retaliation claims, a more than twenty percent increase from 2011.7
To what are we to ascribe the rise of retaliation claims? As the opening quotation suggests, part of the rise might be attributed to the fact that retaliation is a natural, human reaction by individuals accused of unlawful discrimination. In other words, one might suspect that retaliation claims are frequently filed because retaliation happens. But this cannot explain the entire increase seen by the EEOC because 2012 represented the second-lowest number of cause determinations recorded by the EEOC since 1997, with just 4.3 percent of retaliation claims resulting in a cause finding (compared with a high of twelve percent in 2001).8
A second possible explanation may be the sluggish economic recovery. As the EEOC recognized in its Draft Strategic Plan for FiscalYears 2012–2016, “[d]uring more difficult economic times, the EEOC may see an increase in overall charges as more people are laid-off, an increase in certain types of charges, and a decrease in other types of charges.”9
Anecdotal evidence suggests that one type of charge likely to grow in a down economy is the retaliation claim. The reason for this increase in retaliation claims may be the “set up” phenomenon. Employees who anticipate their own termination may “set up” a retaliation claim by complaining of discrimination on the eve of their expected termination. The employer, of course, then faces a dilemma either delay the termination or defend a retaliation claim made difficult by the temporal proximity between the complaint and the termination.
A third explanation may be an increased focus by the EEOC on retaliation claims. As the September 4, 2012 version of the EEOC’s Strategic Enforcement Plan makes clear, the EEOC views retaliation as a direct affront to its law enforcement obligations and an intolerable denial of access to the courts for victims of discrimination:
The EEOC will also target policies and practices intended to discourage or prohibit individuals from exercising their rights underemployment discrimination statutes, or which impede the EEOC’sinvestigative or enforcement efforts. These policies or practices include retaliatory actions; overly broad waivers; settlement provisions that prohibit filing charges with EEOC or providing information in EEOC or other legal proceedings; and failure to retain records required by EEOC regulations.
Retaliation against individuals is the most common discriminatory practice that impedes enforcement of the federal anti-discrimination laws. Yet for all of EEOC’s administrative and legal enforcement efforts over the years aimed at curbing the practice, retaliation persists and is now the largest category of charges the EEOC receives and the largest category of federal sector complaints. To improve our effectiveness, the Commission believes that a targeted outreach and education effort aimed at educating both employers and employees about their rights and responsibilities under EEO laws with respect to retaliation will make greater headway toward preventing retaliatory conduct in the workplace.10
A fourth explanation, and the one that will be analyzed in greater detail below, is a recent expansion of the key legal concepts associated with retaliation. Under Title VII of the Civil Rights Act of 1964 (Title VII),11 the concept of retaliation now applies to more fact patterns than ever. As a corollary, it has become increasingly difficult to obtain summary judgment on retaliation claims.
II. Statutory Basis for Title VII Retaliation Claims
The concept of “retaliation” under Title VII finds its roots in two clauses of 42 U.S.C. § 2000e-3(a), which makes it [a]n unlawful employment practice for an employer to discriminate against any of his employees . . . because (1) he has opposed any practice made an unlawful employment practice by this subchapter, or because (2) he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.12
The first clause is commonly referred to as the “opposition clause” and the second as the “participation clause.”13
III. A Trio of Supreme Court Decisions Expanding the Retaliation Claim
A. “Adverse Action”: Burlington Northern
For the last six years, the Supreme Court’s decision in Burlington Northern & Santa Fe Railway Co. v. White14 has been synonymous with Title VII retaliation. In that case, Sheila White alleged she was retaliated against when she was (1) reassigned to a dirtier, more arduous, and less desirable job and (2) suspended without pay for thirtyseven days, but then reinstated with full back pay.15
The Supreme Court first reasoned that retaliation claims, unlike discrimination claims, are not limited to workplace conduct.16
Then, the Court held that, whether work-related or not, “a plaintiff must show that a reasonable employee would have found the challenged action materially adverse, ‘which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.’ ”17
The “materially adverse” standard was distinguished from “petty slights, minor annoyances, and simple lack of good manners,” which could not be expected to dissuade a reasonable worker.18
Applying these newly minted precepts to the facts at hand, the Supreme Court concluded that reassigning White to the dirtier, harder duties of a track laborer could have been materially adverse to a reasonable employee.19
The Supreme Court also concluded that White’s thirty-seven-day suspension could act as a deterrent to a reasonable employee, even though White had received full back pay.20
Specifically, the Court examined White’s suspension through her eyes at the time she was suspended, noting that she was effectively faced with “the choice between retaining her job (and paycheck) and filing a discrimination complaint.”21
Burlington Northern rejected the idea that retaliation required either an “adverse employment action” or an “ultimate employment decision.”22
Instead, depending on the context, quite literally anything might be considered retaliation, so long as it would dissuade a reasonable worker from making or supporting a charge of discrimination.
B. Opposition Through Response: Crawford
The second major Supreme Court case impacting retaliation law is Crawford v. Metropolitan Government of Nashville & Davidson County, Tennessee.23
The issue in Crawford was whether an employee engages in statutorily protected activity when the employee does not affirmatively complain about alleged discriminatory conduct, but merely answers questions during the course of an internal investigation into the complaints of another employee.24
The Supreme Court looked to the common understanding of the word “opposed,”25 and concluded that the common understanding “goes beyond active, consistent behavior in ordinary discourse, where we would naturally use the word to speak of someone who has taken no action at all to advance a position beyond disclosing it.”26
To conclude otherwise, the Court reasoned, would result in a “freakish rule protecting an employee who reports discrimination on her own initiative but not one who reports the same discrimination in the same words when her boss asks a question.”27
Accordingly, the Supreme Court in Crawford held that an employee need not affirmatively complain of discrimination to be protected from retaliation. It is enough that the employee discloses opposition to such conduct in response to an employer inquiry.
C. Relational Retaliation: Thompson
The third major recent Supreme Court case addressing retaliation is Thompson v. North American Stainless, L.P.28
Thompson’s fiance´efiled a charge of discrimination with the EEOC and three weeks later, Thompson was fired. To determine the viability of Thompson’s retaliation claim, the Supreme Court employed a two-stage analysis:
(1) whether Thompson’s termination constituted retaliation under Title VII and, if so, (2) whether such termination gave Thompson as opposed to his fiance´e—a claim for retaliation.29
Addressing the first question, the Court flexed its Burlington Northern muscle and held that it was “obvious that a reasonable worker might be dissuaded from engaging in protected activity if she knew that her fiance´ would be fired.”30
Nevertheless, the Court recognized that there was a sliding scale of relationships and retaliatory actions, and not every act of retaliation against a third party would meet the Burlington Northern standard.31
With this holding, the Court made clear that Thompson’s fiance´e had a viable claim for retaliation based on Thompson’s termination.32 The Court then turned to the question of whether Thompson himself also had a viable retaliation claim.33
Title VII actions are limited to those brought “by the person claiming to be aggrieved.”34 The Court held that the “person aggrieved” standard was a higher threshold than Article III standing, and adopted the “zone of interests” test used in the Administrative Procedure Act.35 The zone-of-interests test provides that a plaintiff “may not sue unless he ‘falls within the ‘zone of interests’ sought to be protected by the statutory provision whose violation forms the legal basis for his complaint.’ ”36
In the Title VII context, the zone-of-interests test means that any employee may sue if the employee has an interest “arguably [sought] to be protected by the statutes.”37
Applying the zone-of-interests test to the facts at hand, the Supreme Court concluded that Title VII intended to protect individuals like Thompson because he was an employee who was harmed by the intentional, unlawful conduct of his employer.38 This holding is extraordinary in that it completely dispensed with the requirement that the plaintiff has to engage in statutorily protected activity. Harkening back to the statutory text, it is clear that Thompson himself did not satisfy either the “opposition clause” or the “participation clause.”39
Instead, the Supreme Court implicitly bootstrapped on the fiance´e’s protected activity to support Thompson’s retaliation claim. In other words, third-party retaliation claims are necessarily derivative of a traditional retaliation claim. It appears that a third-party retaliation plaintiff is required to prove both the underlying claim for retaliation and the plaintiff ’s own claim for thirdparty retaliation. Phrased differently, if Thompson’s fiance´e had not been able to prove all the elements of her own retaliation claim (i.e., that she engaged in protected activity causally connected to a retaliatory action that met the Burlington Northern standard), then Thompson would not have had a valid third-party retaliation claim. In the end, the lesson of Thompson is that third-party retaliation creates two distinct claims for retaliation: one claim by the individual who engaged in the protected activity and a separate claim by the individual who suffered the brunt of the retaliation.
IV. Recent Retaliation Cases Explaining and Limiting the Burlington Northern, Crawford, and Thompson Triumvirate
A. Internal Investigations Post-Crawford
While perhaps the least controversial of the three Supreme Court decisions, Crawford may pose the greatest risk for the unwary. Many employers and human resources professionals can recognize a “com-plaint” of discrimination or harassment, and know that a prompt and thorough investigation should follow. But if mere responses to questions can themselves be protected activity, it may discourage conducting the investigation in the first place. This precise argument was made to the Supreme Court in Crawford, but the Court rejected that concern.40
The Supreme Court expressed belief that the availability of employer affirmative defenses under Burlington Industries, Inc. v. Ellerth41 and Faragher v. Boca Raton42 would sufficiently incentivize employers to conduct investigations despite the risks posed by Crawford.43
Thus, employers are still expected to conduct prompt and thorough investigations upon receipt of complaints of unlawful discrimination or harassment. However, the investigators must be aware that employees’ provision of information during investigations might itself be considered protected activity and advise management accordingly.
B. Limits of “Opposition” After Crawford
The Supreme Court’s expanded understanding of the meaning of “opposition” to include the reporting of unlawful conduct only in response to questioning is not without its limits. The Sixth Circuit recently examined the boundaries of “opposition” under Title VII in Trujillo v. Henniges Automotive Sealing Systems North America.44
There, the plaintiff claimed retaliation after he complained that a manager made racially offensive comments.45
The Sixth Circuit held that the plaintiff had met the Crawford standard for “opposition” when he told human resources about the manager’s “choice to say inappropriate or derogatory things about other races.”46
However, the plaintiff ’s statements made directly to the allegedly biased manager at the time the manager made the comments presented a different situation. The Sixth Circuit examined the plaintiff ’s testimony and found that he had not actually opposed the comments at the time.47
Indeed, the plaintiff “did not communicate that [the manager’s] comment offended him, let alone that he was complaining about the racial or ethnic character of the conduct.”48
In response to another comment, the plaintiff said that he would try to “keep thepeace” and then exited the conversation as quickly as he could.49
The Sixth Circuit held that nothing in those statements constituted an “opposition” to the alleged racial or ethnic character of the comments, even under Crawford’s interpretation of “opposition.” 50
In another case showing the limits of Crawford, the Eleventh Circuit ruled that an employee assigned to conduct an internal investigation, who was neither the aggrieved nor the accused, did not engage in protected activity.51There, a manager claimed that she had been retaliated against for her role in investigating a complaint of sexual harassment and rape.52
The Eleventh Circuit declined the invitation to extend Crawford, instead following the Tenth and Fifth Circuits in adopting the “manager rule.”53
As formulated by the Eleventh Circuit, the manager rule “holds that a management employee that, in thecourse of her normal job performance, disagrees with or opposes theactions of an employer does not engage in ‘protected activity.’ ”54
Instead, managers engage in protected activity only when they cross the line from being an employee doing a job to an employee lodging a personal complaint.55 Notably, the Eleventh Circuit held that Crawford did not foreclose application of the manager rule because it “did not address whether a disinterested party to a harassment claim could use that harassment claim as its own basis for a Title VII action.”56
C. Application of Burlington Northern
1. Finding the Burlington Northern Standard to Not Have Been Met Despite much hand-wringing in the wake of Burlington Northern that almost every employer response would be considered retaliation, courts have not gone as far as commentators feared. For example, in Patterson v. Xerox Corp.,57
the U.S. District Court for the Western District of New York granted summary judgment to an employer on a retaliation claim even though a supervisor expressly told the complaining employee that she was on his “shit list” for having complained and the employee was given a “verbal written warning.” 58
Although the court noted that retaliatory actions must be considered in the aggregate when applying the Burlington Northern standard,59 these actions would not have dissuaded a reasonable employee from complaining.60
Specifically, with respect to the “verbal written warning,” the court relied on the fact that there was “no evidence that it was placed in plaintiff ’s file, that it had any negative effect on her employment, placed her in any disciplinary process or caused her to lose job status or other benefits.”61
Although the court noted that the Burlington Northern standard is objective and must be evaluated in the context of a reasonable employee, it is relevant to that evaluation whether the plaintiff was subjectively dissuaded from complaining.62
In Patterson, the court noted that the alleged retaliatory conduct did not “dissuade plaintiff from making several subsequent complaints regarding [her supervisor] to the internal ethics helpline and the EEOC.”63
Thus, if a plaintiff is not dissuaded from making subsequent complaints, it is unlikely that a reasonable employee would have been so dissuaded.64
2. Finding the Burlington Northern Standard to Have Been Met On the other hand, the Sixth Circuit found conduct sufficient to meet the Burlington Northern standard in Szeinbach v. The Ohio State University.65
There, a professor in the college of pharmacy alleged retaliation based on her having received a smaller annual raise than her colleagues and disparaging e-mails sent by a coworker to professional colleagues, scholarly journals, and other universities.66 The Sixth Circuit ruled that the smaller pay increase would have dissuaded a reasonable employee, even though the differential between the plaintiff ’s pay increase and her comparators was less than one percent.67
The court also ruled that the university could be held liable for the coworker’s disparaging and retaliatory e-mails because (1) the retaliatory conduct was sufficiently severe as to dissuade a reasonable worker from making or supporting a charge of discrimination, (2) management had actual or constructive knowledge of the retaliatoryconduct, and (3) management had condoned, tolerated, or encouraged the retaliatory conduct.68
Another court found the Burlington Northern standard met when the plaintiff was originally given a suspension that was later grieved down to a letter of warning that eventually was removed from the plaintiff ’s personnel file.69
The court noted some authority for the proposition that warning letters, standing alone, might be insufficient to constitute an adverse action, even under Burlington Northern.70
The court also said that letters requesting medical documentation to support a Family Medical Leave Act entitlement “cannot possibly be viewed as adverse employment actions.”71
Nevertheless, the court found that the warning letter should be viewed as it was originally issued (as a suspension), rather than how it was ultimately disposed of (as a mere warning not even placed in the employee’s file). 72
3. Retaliatory Harassment Somewhat of a paradox has arisen in the context of claims that an employee is the victim of harassment as a result of alleged retaliation for engaging in protected activity. To establish harassment, a plaintiff must show either a tangible employment action or conduct sufficiently severe or pervasive to alter the terms and conditions of employment.73
On the other hand, to show retaliation, a plaintiff must only show conduct that might well have dissuaded a reasonable employee from making or supporting a charge of discrimination.74
The question then arises—which standard governs in claims of retaliatory harassment?
Recognizing the paradox, the Federal District Court for the Eastern District of New York held that a plaintiff alleging a retaliatory hostile work environment must meet the higher threshold of hostile workenvironment, even in light of the relaxed standard for retaliation set forth in Burlington Northern.75
As the court observed, “[n]early every decision to address a claim for retaliatory hostile work environment has held that a plaintiff must satisfy the same standard used to evaluate conventional hostile work environment claims.”76
On the other hand, the court also identified decisions that “have questioned, without deciding, whether the burden in asserting a claim for retaliatory hostile work environment has necessarily been lowered” in light of Burlington Northern.77
The court agreed with the former line of cases, saying that “the Supreme Court provided no indication in [Burlington Northern] that it intended to expand the reach of the judicially-created claim of retaliatory hostile work environment in addition to lowering the burden of making out a claim based on the retaliatory acts of an employer.”78
The First Circuit agreed with this position in Alvarado v. Donahoe.79 That case recognized that retaliatory hostile work environment is a valid claim and that the Burlington Northern standard can be reached by aggregating minor retaliatory acts.80
But, despite the Supreme Court’s admonition in Burlington Northern that “context matters,” the FirstCircuit held that discriminatory comments should be disregarded if they were not causally connected to the protected activity.81
Applied to the facts in Alvarado, the First Circuit held that discriminatory comments made by employees who had no knowledge of the plaintiff ’s protected activity should not even be considered in assessing whether a retaliatory hostile work environment existed. 82
When aggregating all the various claimed retaliatory actions that could have been causally connected to the protected activity, the First Circuit weighed them against the “severe or pervasive” standard of a hostile work environment.83
These decisions demonstrate the importance of characterizing a claim as retaliatory harassment. The claims in Cajamarca and Alvarado were viewed through a harassment lens. Thus, these plaintiffs were required to meet the much higher standard of a hostile work environment. Had the Cajamarca and Alvarado courts viewed the claims as purely for retaliation, they may well have found the Burlington Northern standard had been met.
D. Overlap of Title VII Retaliation and the National Labor Relations Act
Burlington Northern also poses an interesting question in light of Banner Health System, a recent ruling from the National Labor Relations Board (NLRB) relating to internal investigations. The NLRB held that it is an unfair labor practice for employers to give blanket instructions to employees to maintain confidentiality of matters discussed during internal investigations.84
However, a public investiga-tion might cause embarrassment or reputational harm in the workplace, a possible adverse action under Burlington Northern. Accordingly, employers are faced with a Catch-22. One recent case shows the potentially awkward position in which an employer might find itself as a result of complying with both the NLRB’s decision in Banner Health System and Burlington Northern.
In Fordham v. Islip Union Free School District, a teacher who had previously complained of discrimination was accused of striking a student.85
In conducting the investigation into the striking incident (not the discrimination complaint), the school district interviewed the teacher in view of parents, students, and other teachers.86
The teacher alleged that this public investigation resulted in the unnecessary publication of her being investigated, which called into question her character and fitness as a teacher.87
Although saying that it was a “close call,” the court found that the public nature of the investigation could satisfy the Burlington Northern standard for material adverse action.88
Extrapolated from the facts of Fordham, employers face somewhat of a quandary—a public investigation might be considered embarrassing and retaliatory under Burlington Northern, but broadly instructing employees to keep investigations confidential is an unfair labor practice under Banner Health Systems. Nevertheless, all the traditional best practices of an investigation (e.g., private room, minimal disruption, etc.) are still lawful and can help to ensure confidentiality.
V. Conclusion
The trend of rising retaliation claims shows no sign of slowing, and the EEOC is placing special emphasis on retaliation as part of its strategic plans. Litigating retaliation claims is therefore going to be a fact of life for employers and employees for the foreseeable future. Moreover, given the Supreme Court’s decisions in Burlington Northern, Crawford, and Thompson, the law has shifted to favor plaintiffs who assert retaliation claims. These factors combine to create an atmosphere ripe not just for the filing of retaliation claims, but for their litigation and survival beyond summary judgment. In light of the Supreme Court’s recent pronouncements, and the questions that still remain open in the retaliation context, it cannot be gainsaid that the risks of defending retaliation claims are on the rise.
1. ALBERT CAMUS, Reflections on the Guillotine, RESISTANCE, REBELLION, AND DEATH (1961).
2. Charge Statistics FY 1997 Through FY 2012, EEOC, http://www.eeoc.gov/eeoc/ statistics/enforcement/charges.cfm (last visited Mar. 17, 2013).
3. Id.
4. Id.
5. 548 U.S. 53 (2006).
6. Retaliation-Based Charges FY 1997–FY 2012, EEOC, http://www.eeoc.gov/eeoc/ statistics/enforcement/retaliation.cfm (last visited Mar. 17, 2013).
7. Id.
8. Id.
9. EQUAL EMP’T OPPORTUNITY COMM’N, DRAFT STRATEGIC PLAN FOR FISCAL YEARS 2012– 2016, at 30, available at http://www.eeoc.gov/eeoc/plan/upload/strategic_plan_12to16_ DRAFT.pdf.
10. EQUAL EMP’T OPPORTUNITY COMM’N, STRATEGIC ENFORCEMENT PLAN 7 (2012), available at http://www.eeoc.gov/eeoc/plan/upload/SEP_Public_Draft__9-4-12.pdf.
11. 42 U.S.C. §§ 2000e to 2000e-17 (2006).
12. Id. § 2000e-3(a) (numerals added for clarification).
13. Crawford v. Metro. Gov’t of Nashville & Davidson Cnty., Tenn., 129 S. Ct. 846, 850 (2009).
14. 548 U.S. 53 (2006).
15. Id. at 57–58.
16. Id. at 63 (“An employer can effectively retaliate against an employee by takingactions not directly related to his employment or by causing him harm outside the workplace.”).
17. Id. at 68 (quoting Rochon v. Gonzales, 438 F.3d 1211, 1219 (D.C. Cir. 2006)).
18. Id.
19. Id. at 70.
20. Id. at 71–72.
21. Id. at 73.
22. Id. at 67.
23. 129 S. Ct. 846 (2009).
24. Id. at 849.
25. Id. at 850.
26. Id. at 851 (internal quotation marks omitted).
27. Id.
28. 131 S. Ct. 863 (2011).
29. Id. at 867.
30. Id. at 868.
31. Id. (“We expect that firing a close family member will almost always meet theBurlington standard, and inflicting a milder reprisal on a mere acquaintance will almostnever do so, but beyond that we are reluctant to generalize.”).
32. Id. at 870.
33. Id. at 869–70.
34. Id. at 869 (quoting 42 U.S.C. § 2000e-5(f )(1) (2006)).
35. Id. at 869–70 (citing 5 U.S.C. §§ 551–559 (2006)).
36. Id. at 870 (quoting Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 883 (1990)).
37. Id. (quoting Nat’l Credit Union Admin. v. First Nat’l Bank & Trust Co., 522 U.S. 479, 495 (1998)).
38. Id.
39. See 42 U.S.C. § 2000-e(3)(a) (2006)
40. Crawford v. Metro. Gov’t of Nashville & Davidson Cnty., Tenn., 129 S. Ct. 846, 851–52 (2009).
41. 524 U.S. 742 (1998).
42. 524 U.S. 775 (1998).
43. Crawford, 129 S. Ct. at 852 (“Ellerth and Faragher hold ‘[a]n employer . . . subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with . . . authority over the employee.’ ” (quoting Ellerth, 524 U.S. at 765; Faragher, 524 U.S. at 807)).
44. No. 11-1148, 2012 WL 3570654 (6th Cir. Aug. 20, 2012).
45. Id. at *1–2.
46. Id. at *4.
47. Id. at *3.
48. Id. at *4.
49. Id.
50. Id.
51. Brush v. Sears Holdings Corp., 466 F. App’x 781, 786–88 (11th Cir. 2012).
52. Id. at 784.
53. Id. at 787.
54. Id.
55. Id. (quoting McKenzie v. Renberg’s Inc., 94 F.3d 1478, 1486 (10th Cir. 1996)).
56. Id.
57. No. 10-CV-6097, 2012 WL 2155278, at *2 (W.D.N.Y. June 13, 2012).
58. Id.
59. Id. at *6 (quoting Tepperwien v. Energy Nuclear Operations, Inc., 663 F.3d 556, 567–68 (2d Cir. 2011) (citing Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 69–70 (2006))).
60. Id.
61. Id. at *7.
62. Id. at *5–7.
63. Id. at *7.
64. See Jantz v. Emblem Health, No. 10-Civ-6076-PKC, 2012 WL 370297, at *15 (S.D.N.Y. Feb. 6, 2012) (“The Second Circuit has instructed that while the test is . . .objective, it remains relevant whether the plaintiff himself was deterred from complaining.”) (citing Tepperwien, 663 F.3d at 572)).
65. 493 F. App’x 690, 695 (6th Cir. 2012).
66. Id. at 693–94.
67. Id. at 694.
68. Id.
69. Guethlein v. Donahoe, No. 1:09-CV-451, 2012 WL 3028509, at *10 (S.D. Ohio
July 25, 2012).
70. Id. at *11 (citing Melton v. U.S. Dep’t of Labor, 373 F. App’x 572 (6th Cir. 2010);
Jones v. Johanns, 264 F.3d 463, 468 (6th Cir. 2007)).
71. Id.
72. Id.
73. See, e.g., Freyte-Torres v. City of Sanford, 270 F. App’x 885, 889 (11th Cir.
2008).
74. Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006).
75. See Cajamarca v. Regal Entm’t Grp., 863 F. Supp. 2d 237, 254 (E.D.N.Y. 2012).
76. Id.
77. Id.
78. Id.
79. 687 F.3d 453 (1st Cir. 2012).
80. Id. at 458–59.
81. Id.
82. Id.
83. Id. at 461.
84. Banner Health Sys., 358 N.L.R.B. 93 (2012)
85. No. 08-CV-2310, 2012 WL 3307494, at *1 (E.D.N.Y. Aug. 13, 2012).
86. Id. at *2.
87. Id. at *5.
88. Id. at *6.
This article was previously published in the American Bar Association’s Journal of Labor & Employment.
