Today our video podcast discusses an issue we also discuss in Mark’s paper — namely, the fact that positive treatment of an employee after their protected activity is often, but not always, regarding by courts as potent proof of non-retaliation.
The most difficult retaliation cases to defend are often ones where a long-term employee had a spotless record and positive performance reviews for years, engaged in protected activity, and then promptly began being written up and their performance reviews plummeted. See, e.g., Shirley v. Chrysler First, Inc., 970 F.2d 39, 43 (5th Cir. 1992) (affirming a jury verdict in a retaliation case involving a long-term employee, and stating “[w]e find it surprising that suddenly, after Shirley filed her EEOC complaint, problems with her work surfaced.”).
On the other hand, where employers take favorable action towards an employee after they have engaged in protected activity, courts often regard that evidence as powerful proof of non-retaliation. A case demonstrating this point is Brady v. Houston Independent School Dist., 113 F.3d 1419, 1424 (5th Cir. 1997). There, the Fifth Circuit U.S. Court of Appeals reversed a jury verdict for the plaintiff in a retaliation case, stating:
Brady’s case suffers from other critical flaws. During the eighteen month period between Brady’s protected statements and the Appellants’ alleged retaliation, Mahaffey and Cortese gave Brady positive evaluations and twice recommended that she be promoted. This fact is utterly inconsistent with an inference of retaliation, and we fail to understand why two individuals allegedly harboring a retaliatory motive against Brady would take affirmative steps to secure a job promotion for her.
Other courts have reached similar conclusions. Moticka v. Weck Closure Systems, 183 Fed. Appx. 343, 353 (4th Cir. 2006). In another example, in Satterfield v. Board of Trustees Univ. of Ala., No. 2:11–cv–3057–JHH, 2012 WL 3139693, at *5 (N.D. Ala. July 31, 2012), the district court granted the employer’s motion for summary judgment against the plaintiff in a retaliation case, emphasizing that “after Satterfield complained about discriminatory comments made by a coworker, and despite the below-average performance review, he was shortly thereafter promoted with a 26% pay increase; he was provided with schooling (and continues to attend technical school) on HVAC maintenance at the expense of UAB. . . . This context matters. Although some actions taken by UAB may have been perceived by Satterfield as adverse, the totality of the picture of actions taken by UAB before, during, and after the complaint was made make clear that UAB did not subject Satterfield to retaliation.” Id. (citations omitted, italics in original).
But, this view of things is not absolute. For example, in Feder v. Bristol-Myers Squibb Co., 33 F. Supp. 2d 319, 339 (S.D.N.Y. 1999), the employer argued that its favorable post-complaint treatment of the plaintiff precluded a retaliation claim, but, on the specific facts of that case, the court disagreed, stating:
Defendant argues that its favorable treatment of Feder after her EEOC charge precludes any inference of retaliatory motive. There is a question, however, whether that favorable treatment was an effort to avert or undermine a claim of retaliation. After all, BMS has not explained why Feder, who had not reported to Weg when she ran licensing, was given a direct reporting relationship – along with a new title and direct contact with the chairman and chief executive officer – after Feder filed her charge and after a major part of her responsibilities was removed from her. On this record, the trier of fact would be entitled to infer that defendant’s favorable treatment was intended to mask a retaliatory motive.