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PROVING RETALIATION

Written by Billie Garde, Clifford and Garde, LLP

Proving that retaliation was a factor in a personnel decision is, by its nature, difficult. Rarely does an employer admit that the reason it decided to terminate someone, or take away all their job responsibilities, was because that employee raised a safety concern. Although there is the occasional rare piece of evidence that leaves little doubt about the motive behind an adverse action – the most common way to prove whether retaliation was a factor is through circumstantial evidence.

For the ECP investigator, collecting relevant circumstantial evidence is critical to being able to make a sound decision and recommendations. In a now out of print book, Proof of Facts: Proof of Retaliatory Termination, Am.Jur. 2nd, §7.1, there is a very helpful list of the most common types of evidence to look for to prove whether retaliation was a factor in a termination (or any adverse action). I list some of the most common types of proof below:


1) Temporal Proximity – or timing – is the most common manner type of circumstantial evidence used to indicate the likelihood that an employer acted in response to the employee’s protected activity. An employee engages in protected activity one day, and the next day he is the only person in an unscheduled one person lay off.

TIP: When developing the investigation plan, build a strong chronological narrative about when relevant and important events happened, look for actions or decisions that don’t make common sense without some explanation.


2) Hostile Attitude Toward Protected Conduct. In one case a supervisor wrote in his daily log about the technical dispute that the employee was “[a] low-down snake in the grass whistleblower.” Great piece of circumstantial evidence that the supervisor took a dim view of whistleblowing.

TIP: Review all documents, including email traffic, that captures what the employer thinks about the employee and her protected conduct.


3) No Documentation of Complaints of Poor Performance before the protected conduct. How many times is there no documentation of poor performance about the whistleblower until after the protected activity? There is no “free pass” for supervisors to fail to document performance issues, and then attempt to rewrite history after the worker blows the whistle.

TIP: Pull the personnel record, look at the evaluations and comments, if there is no evidence of dissatisfaction before the whistleblowing, and now the worker is being characterized as one of the worst employees, this is strong circumstantial evidence that the intervening protected conduct changed the employer’s attitude towards his employee.


4) Treating Similarily Situated Employees Different: When an employer treats the whistleblower differently than other employees who engage in the same type of conduct, i.e., failing to produce a doctor’s note for safe return to work, tardiness, dress code violations, etc., it may be circumstantial evidence that the employer was bias against the whistleblower employee and trying to hold her to a higher standard as a form of retaliation.

TIP: Collect all the evidence of other employees, engaging in the same behaviors, but not suffering the same consequence. Identify the explanations provided by the employer for the disparity and analyze the credibility of those explanations.


Other types of proof offered is: 5) the termination procedure itself. Was the whistleblower escorted off the site under guard, without notice, publicly humiliated by the action – while all other laid off employees were allowed to say good bye to their colleagues and leave with dignity? 6) Previous satisfaction with the employee’s work record, or 7) threats of retaliation against other employees for similar conduct.


I would like to be able to say that there is less retaliation across the industries we work in, unfortunately, retaliation remains alive and well as a basic instinct of human behavior – we all will defend ourselves against those we see as outsiders who threaten to hurt our success or survival. It is human nature to want to retaliate against those whose actions might expose our own career to harm. As investigators, the best tip is to follow your own instincts about the allegation and understanding what happened, and why.
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