Framing The Retaliation Claim

by John Gause, Esq.
Published: Maine LAWYERS REVIEW, April 8, 2010,

Imagine spending four days in trial in a disability retaliation case and winning $300,000, only to have it taken away because the anti-retaliation provision in the Americans with Disabilities Act (“ADA”) turns out not to allow the recovery of compensatory and punitive damages. Or think of bringing the same claim under the Maine Whistleblowers’ Protection Act (“WPA”), only to find out after it is too late to amend that plaintiff cannot recover because she alleges retaliation for filing a complaint with the Maine Human Rights Commission, but she did not first report the discrimination to her employer. With several different ways to bring a retaliation claim, these possible scenarios remind us that it important to plead the right cause of action.

Retaliation occurs when plaintiff is discriminated against for asserting her right to be free from unlawful discrimination, either directly to employer or to a public body. There are many possible causes of action. For example, if plaintiff was fired for complaining that she was harassed by her coworkers because of her disability, she could bring a claim under the anti-retaliation provision in the ADA; the Maine Human Rights Act (“MHRA”) provision that addresses retaliation only in employment, section 4572(1) (E); section 4633 of the MHRA, which prohibits retaliation in all areas, including employment; the general definition of “unlawful discrimination” in the MHRA, section 4553(10)(D), which includes retaliation; or she could allege discrimination for engaging in activity protected by the WPA.

But one cause of action is not the same as another. Choosing the right one can make the difference between getting full relief, partial relief, or no relief at all. What you need to prove varies from one claim to another, and the available remedies are different.

Under the ADA, two United States Courts of Appeals have now held that the antiretaliation provision does not allow for the recovery of compensatory or punitive damages. In Alvarado v. Cajun Operating Co., the Ninth Circuit followed the reasoning of the Seventh Circuit in holding that the compensatory and punitive damages provision applicable to employment discrimination claims does not apply to retaliation claims. Rather, ADA retaliation claims are redressable only by equitable relief, such as reinstatement or back pay. Although some United States District Courts have reached the contrary conclusion, there is certainly the risk of a controlling court in Maine following the Ninth and Seventh Circuits.

With respect to the MHRA, there is no question that compensatory or punitive damages are available under the anti-retaliation provision that specifically applies to employment, section 4572(1)(E), or the employment provision, 4572(1)(A), that prohibits discrimination for engaging in WPA-protected activity. A careful reading of the two other MHRA anti-retaliation provisions, however, in conjunction with the damages section, suggests that compensatory and punitive damages are not available under them. This is because the MHRA allows for the recovery of “compensatory and punitive damages” only in cases of intentional “employment discrimination.” Although retaliation under section 4572 is designated as “employment discrimination,” retaliation under sections 4633 and 4553(10)(D) is not.

Bringing a strictly WPA-based retaliation claim has its own potential problems. Under the WPA, employee is protected if she reports to her employer or a public body what she reasonably believes is a violation of law, which includes violations of the MHRA or federal anti-discrimination laws. A complaint to a public body, however, is usually only protected if employee first reports the problem to her employer. Thus, if plaintiff is retaliated against for filing a complaint with the Commission, but she did not first bring the complaint to her employer, her filing with the Commission may not be protected under the WPA. None of the other anti-retaliation claims require plaintiff to go to employer before filing with the Commission or in court.

If the claim is retaliation for filing a complaint with the federal Equal Employment Opportunity Commission (“EEOC”), the WPA is also probably not the right cause of action. The WPA protects complaints to a “public body,” but it defines “public body” to include state or local bodies, not federal ones. Federal anti-discrimination law will provide protection here, and the reporting activity may also be covered by one of the other MHRA retaliation claims.

The WPA is also more limited than the other retaliation claims in terms of what employer must do to be covered. In Burlington Northern & Santa Fe Railroad Co. v. White, the United States Supreme Court held that the anti-retaliation provision in Title VII of the Civil Rights Act of 1964 forbids retaliatory employer actions that are “materially adverse” to an employee. Unlike the substantive anti-discrimination provision, the anti-retaliation provision does not limit its reach to employer actions that affect the terms, conditions, or status of employment. Rather, a “materially adverse” action is one that would dissuade a reasonable worker from making or supporting a charge of discrimination, regardless of whether it relates to employment or occurs at the workplace.

Like Title VII, the MHRA anti-retaliation provisions prohibit employer from discriminating against or punishing or penalizing employee for engaging in protected activity but do not limit those actions to the terms, conditions, or status of employment. Accordingly, the Law Court is likely to adopt the Burlington Northern standard for purposes of the anti-retaliation provisions in the MHRA. The WPA language, on the other hand, is linked to employment. The vehicle to enforce the WPA is section 4572(1) (A) of the MHRA, which makes it unlawful employment discrimination, based on employee’s WPA-protected activity, for employer “to discharge an employee or discriminate with respect to hire, tenure, promotion, transfer, compensation, terms, conditions or privileges of employment or any other matter directly or indirectly related to employment.” Therefore, theBurlington Northern standard will probably not apply to WPA claims.

This issue was highlighted in the Law Court’s decision in LePage v. Bath Iron Works Corp. There, the Law Court upheld summary judgment for BIW in a WPA claim. Plaintiff alleged that he engaged in protected activity and his supervisor, “‘gave him hell’ about hiring a lawyer and warned him BIW would fight him in court, and that as a result of the meeting with [supervisor], he felt that his job was in jeopardy.” The Law Court rejected the claim because supervisor’s attacks were not directed against plaintiff’s “compensation, terms, conditions, location or privileges of employment.” Although it was not alleged or discussed, the supervisor’s attacks may have been sufficient as “materially adverse actions” under the other MHRA anti-retaliation provisions.

Another consideration when deciding which anti-retaliation cause of action to allege is how it might affect an argument for individual liability. Federal courts have generally found that individuals cannot be liable for retaliation under federal antidiscrimination laws. The Law Court has not decided whether such a claim is viable under any provision in the MHRA. Although a strong argument can be made for individual liability under section 4572, the more straightforward claims will be under the general anti-retaliation provision, in section 4633, or the claim under the definition of “unlawful discrimination,” in section 4553(10)(D). Unlike the anti-retaliation provisions in section 4572, neither of these sections is limited to retaliation by an “employer.” “Employer” is defined broadly to include, “any person acting in the interest of any employer, directly or indirectly,” but it still creates a semantic hurdle that is not in the other provisions. Section 4633 directly prohibits a “person” from retaliating.

In sum, there are many factors to consider when choosing the best retaliation cause of action. No one claim fits all situations. Carefully choosing the right one will maximize plaintiff’s potential recovery.