‘True statement’ to former employee’s potential employer about her pending lawsuit could be retaliatory

By Deborah Hammonds, J.D.

An energy commodities broker who claimed her former employer interfered with her potential new job by telling that company about their pending legal dispute was allowed to proceed with her retaliation claims under Title VII and state law, ruled a federal district court in Connecticut. Though her former employer appeared to argue that a true statement cannot rise to a Title VII violation, the court explained that “a true statement offered in retaliation for protected conduct could qualify as a retaliatory act in some circumstances” (Shakerdge v. Tradition Financial Services, Inc., September 26, 2017, Bolden, V.).

Former employer allegedly fostered discriminatory environment. After she was fired by her former employer in June 2015, the plaintiff filed suit under Title VII and the Connecticut Fair Employment Practices Act (CFEPA) alleging that she had been subjected to a working environment where crassness and bias pervaded the trading room. She was the only woman on the trading floor where the other brokers, approximately 35 men, made sexist and racist comments, viewed porn, and engaged in other discriminatory behavior. She also alleged she was often subjected to misogyny and physical harassment from her supervisors, despite her repeated complaints.

New job offer revoked. In January 2016, the plaintiff was offered a job at another brokerage firm. While counsel negotiated the final details of her employment agreement, she went to the office, filled out HR paperwork and was given computer access as well as an email address. After working a full day for the company, she received a text from HR, asking her not to come back until there was a signed employment agreement. The next day, she was notified that the job offer had been rescinded. Another broker later told her she was fired “because of her legal dispute” with her former employer and that he knew because he sat near the HR offices and could hear most of their conversations.

Retaliation claim. The plaintiff filed an amended complaint adding claims that she was retaliated against for engaging in protected activity. Her former employer sought to dismiss the claims, arguing that the retaliation counts were insufficiently pled and failed to state a claim upon which relief could be granted. It argued that the plaintiff failed to allege any facts showing it engaged in conduct capable of hindering her employment with the new company and that it did so in retaliation for her filed charge.

Denying the employer’s motion, the court wrote that while the amended complaint did lack specific allegations in several parts, considering both the Second Circuit’s “minimal evidence” standard applicable in Title VII cases and the amended complaint as a whole, and drawing all reasonable inferences in the plaintiff’s favor, she had plausibly stated a retaliation claim upon which relief may be granted.

Adverse employment action. The first prong for “participation in a protected activity” was fulfilled with the plaintiff’s CHRO complaint. For the second prong, the employer offered no evidence it was unaware of that filing at the time of the alleged retaliation. For the third prong, the employer argued that the plaintiff had not plausibly pled an adverse action to sustain a retaliation claim.

First, the court noted that a negative reference or similar actions taken with respect to a new prospective employer can be considered an adverse action and therefore provide support for a retaliation claim. The employer appeared to argue that a true statement, offered in retaliation, cannot rise to a Title VII violation. However, that is not the standard, and a true statement offered in retaliation for protected conduct could qualify as a retaliatory act in some circumstances, wrote the court.

Plausible link to withdrawn job offer. Second, the plaintiff alleged specific facts that sustained the claim as plausible. While the employer argued that the lack of specific dates, people, or acts in the complaint meant the claims must be dismissed, the court pointed out that the plaintiff had alleged that the new company essentially hired her, registered her with a regulatory body, and then “rescinded” the offer because of her CHRO complaint. Her argument was that, absent some adverse action on the part of her former employer, the new company would not have taken such an unlikely series of steps. She also alleged specific adverse actions by her former employer; that it “encouraged” the new company to take the steps it did; and that there was an attempt to blacklist her within a field with few employers.

The new company may have acted independently of any action on the part of the former employer when it rescinded its offer of employment, even after the plaintiff began working there. But it was certainly plausible that the new company contacted the plaintiff’s former employer and that the former employer had some role in the subsequent dismissal.