- A city worker who was informed several months before she filed a grievance that she was going to be demoted could not claim that the employer's action stemmed from retaliation (Welton v. Durham County, No. 18-2340 (4th Cir. August 28, 2019)).
- Marqueta Welton, a deputy county manager, competed for the open position of county manager before withdrawing her application; she alleged she suffered harassment and humiliation over the next two years she served under the new county manager. Welton sued, claiming retaliation for challenging her boss's candidacy and also for filing workplace grievances.
- The trial court dismissed most of the claims, and the 4th U.S. Circuit Court of Appeals affirmed. Welton was told, prior to filing her workplace grievance, that she was being reassigned to a lower-paying position due to a reorganization. Even though the actual demotion happened after the grievance was filed, the grievance "simply had no bearing on the earlier decision to demote her," the 4th Circuit said.
It is illegal for employers to punish employees for taking advantage of the protections offered by equal employment opportunity laws. For example, it is unlawful to retaliate against employees for filing charges with the Equal Employment Opportunity Commission (EEOC) or filing a lawsuit alleging workplace discrimination. Retaliatory acts can include transferring an employee to a less desirable position, engaging in verbal or physical abuse or making the person's work more difficult.
Timing alone can establish a prima facie case of retaliation, experts have said. Courts have said that, in some cases, temporal proximity can be enough to prove circumstantial evidence of retaliation in establishing a prima facie case and for showing pretext. Evidence based on timing alone can be sufficient to send the issue of discrimination or retaliation to a jury, even when alternative reasons are offered by the defendant.
Experts have recommended that employers screen the managers overseeing employees involved in protected activity for "retaliation red flags" such as increased supervision or monitoring, new performance issues, higher standards or expectations, and supervisor complaints about the employee. If there are performance issues, detailed, contemporaneous documentation is crucial to establishing that discipline is justified and not merely an illegal response to protected activity.