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Perception v. Reality: What Matters More in a Retaliation Claim?

By Robyn Hagan Cain on February 21, 2013 | Last updated on March 21, 2019

When your company is sued for unlawful retaliation, it doesn't matter if you're right or wrong. If you go to trial, what matters is how the situation looks to a jury.

This week, the Second Circuit Court of Appeals revived a former student worker's retaliation claims against Hofstra University, finding that the student presented sufficient evidence to survive summary judgment. Things don't look good for the University.

Lauren Summa was a graduate student at Hofstra University from 2006 through 2009. She worked served as a team manager for the school's football team during the fall 2006 season.

Summa complained that she was sexually harassed by members while she was a team manager, the New York Daily News reports. After she reported the players' bad behavior, she learned that her fall-and-spring manager gig no longer included the spring. The coaching staff told her that they hired someone else for spring because they "had not yet heard from her."

Summa found another campus job, but her employment offer for the second job was rescinded after University learned that she had filed an unlawful retaliation lawsuit based on the first job. The University's reasons for the rescinding the offer? Summa's résumé was imprecise, she had a lukewarm reference, and she "overstated" importance of her duties in a past internship.

So Summa added another retaliation complaint against the school.

The Director of Human Resources terminated Summa's privilege of student employment the following summer because the University discovered she had double-counted some of her hours in violation of campus policies. That would seem like a legitimate cause for termination, except the Director had never terminated any other student's privilege of student employment in the past nor had she investigated any other student's billing practices.

So Summa tacked on a third retaliation claim to her suit.

To make out a prima facie case of retaliation, a plaintiff must make four showings:

  1. She engaged in a protected activity.
  2. Her employer was aware of this activity.
  3. The employer took adverse employment action against her.
  4. A causal connection exists between the alleged adverse action and the protected activity.

Once a prima facie case of retaliation is established, the burden of production shifts to the employer to demonstrate a legitimate, nondiscriminatory reason for its action. If the employer demonstrates a legitimate, non-discriminatory reason, then the burden shifts back to the plaintiff to establish -- through either direct or circumstantial evidence -- that the employer's action was motivated by discriminatory retaliation."

Could all this be coincidence? Absolutely. But think about how it looks to a jury. An employee complains about harassment, and loses her job. She keeps getting jobs with the same employer, but she keeps losing those jobs after she files a retaliation complaint. Hofstra has a tough battle ahead if it decides to go to trial, even if it dismissed Summa for legitimate reasons.

Perception may be even more important than reality when defending an unlawful retaliation lawsuit, especially after it survives summary judgment.

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