How-To: Sue for Post-Termination Retaliation

• Under Florida Law (ie, FCRA via FCHR):
  • Within 35 Days of the FCHR's Notice of Determination (No Reasonable Cause); OR
  • within 1 Year of the FCHR's Notice of Determination (Reasonable Cause); OR
  • within 1 Year of the FCHR's Final Order Finding an Unlawful Employment Practice Occurred;
    • see §760.11 FS
• Under Title VII (EEOC):
  • Within 90 Days of the EEOC's Right-to-Sue Letter
    • see 29 CFR §1601.19
• Under 42 USC §1981:
  • Within 4 Years of the Defendant's last adverse employment act

1. Plaintiff engaged in a statutorily protected activity
   
   • Example: filing a formal complaint with a state agency (eg, the FCHR)
   • Example: filing a formal complaint with a federal agency (eg, the EEOC)
   • Example: filing a formal complaint with a local agency (eg, Jacksonville Commission on Human Rights)
   
   
2. Plaintiff suffered a materially adverse action
   • Goldsmith v. Bagby Elevator Co., 513 F.3d 1261, 1277 (11th Cir. 2008)

     "The [employer's response] would have affected Goldsmith's continued pursuit of his pending charge of discrimination."

   • Saunders v. Emory Healthcare, Inc., 360 F. App’x 110, 115 (11th Cir. 2010)

     "In the anti-retaliation context, adverse employment actions are those that might dissuade a reasonable worker from making or supporting a charge of discrimination." "The conduct only need be serious enough that it might dissuade a reasonable worker from making or supporting a charge of discrimination."

   • Burlington Northern & Santa Fe Railroad Company v. White 548 US 53 (2006)

     "the anti-retaliation provision seeks to prevent an employer from interfering with an employee’s efforts to secure or advance enforcement of the Act’s basic guarantees." "The Court refers to material adversity to separate significant from trivial harms." "The anti-retaliation provision protects an individual not from all retaliation, but from retaliation that produces an injury or harm."

   
   
3. There was a causal relation between the two (ie, the protected activity and the adverse action)
   • Brungart v. BellSouth Telecomms., Inc., 231 F.3d 791, 799 (11th Cir. 2000)

     "we construe the "causal link" element to require merely that the plaintiff establish that the protected activity and the adverse action were not wholly unrelated." "In order to show the two things were not entirely unrelated, the plaintiff must generally show that the decision maker was aware of the protected conduct at the time of the adverse employment action."

   • Springs v. U.S. Dep’t of Treasury, 567 F. App’x 438, 445 (6th Cir. 2014)

     "What factual grouping constitutes a "transaction," and what groupings constitute a "series," are to be determined pragmatically, giving weight to such considerations as whether the facts are related in time, space, origin, or motivation, whether they form a convenient trial unit, and whether their treatment as a unit conforms to the parties' expectations or business understanding or usage."

   • Drago v. Jenne, 453 F.3d 1301, 1308 (11th Cir. 2006)

     "The temporal proximity must be "very close" if there is no other evidence tending to show causation. Id. "[I]n the absence of any other evidence of causation, a three and one-half month proximity between a protected activity and an adverse employment action is insufficient to create a jury issue on causation."

   • Wideman v. Wal-Mart Stores, Inc., 141 F.3d 1453, 1456 (11th Cir. 1998)

     "In the absence of close temporal proximity, a plaintiff may establish causation by showing that her employer knew of a protected activity, and that a series of adverse employment actions commenced shortly thereafter."

Appellant further alleges that appellee has no standing to challenge the alleged discriminatory practices since he is no longer an employee of the appellant. This contention is contrary to the clear weight of authority. In Johnson v. Georgia Highway Express, Inc., 417 F.2d 1122 (5th Cir. 1969), for example, the Court permitted a former employee, allegedly fired for racial reasons, to maintain a class action consisting of an "across the board" attack on discrimination. See also Carr v. Conoco Plastics, Inc., 423 F.2d 57 (5th Cir. 1970); Wilson v. Monsanto Co., 315 F. Supp. 977 (E.D.La. 1970) (job applicant); Kemp v. General Electric Co., 60 L.C. ¶ 9238 (N.D.Ga. 1969) (discharged employees); Gunn v. Layne Bowler, Inc., 56 L.C. ¶ 9088 (W.D.Tenn. 1967) (discharged employee). But cf. Colbert v. H-K Corp., 295 F. Supp. 1091 (N.D.Ga. 1968). It is to be noted that although the present action is not labelled a class action, it "is perforce a sort of class action for fellow employees similarly situated." Jenkins v. United Gas Corp., 400 F.2d 28, 33 (5th Cir. 1968). See also Blue Bell Boots, Inc. v. Equal Employment Opportunity Commission, 418 F.2d 355 (6th Cir. 1969). Appellant's black employees will benefit if appellee's position is upheld in the District Court, for part of his complaint seeks general relief against a wide range of past and present allegedly discriminatory practices. Considering the class aspects of this action, the District Court should take necessary precautions to protect the interests of the parties who will be affected by the action.

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