You have probably been cautioned by a well-meaning attorney or HR professional at least once over the course of your career: “Don’t do it! It will look like retaliation!” What does that mean? And how can education professionals avoid claims and lawsuits stemming from allegedly retaliatory actions?
Workplace retaliation is punishment of an employee by an employer for engaging in legally protected activity. We’ll get into what constitutes legally protected activities later in this article, but know that it can be anything from making a complaint of racial discrimination to merely inquiring about availability of Oregon family medical leave benefits. Punishment of the employee could include firing, demoting, harassing, transfer, or any other action that could be considered an adverse employment action.
It is common that the original allegation regarding discrimination by an employee fails to establish a violation of law, but the subsequent retaliation allegation results in a discrimination finding. In order to prevail in a retaliation claim, the employee must show: 1) protected activity; 2) adverse employment action; 3) causal connection between the protected activity and the adverse employment action. Causal connection can be inferred from the circumstantial evidence of 1) an employer's knowledge that the plaintiff engaged in protected activity, and 2) the time interval separating the protected activity and allegedly adverse action. Remedies for illegal retaliation can include lost wages and benefits and reinstatement for discharged employees. In some claims, punitive damages and attorney’s fees may be awarded.
Employees can sue for retaliation even if they were not discriminated against personally. For example, retaliation provisions cover employees who are family members of a person who filed an employment discrimination claim, employees who complained that a fellow employee was discriminated against, or a teacher that complained under Title IX of sex discrimination in student athletics program.
We’ll start with looking at the most common examples of protected activity, then move to suggestions on how to avoid retaliation claims, and finish with some sample retaliation cases involving school districts and community colleges within our jurisdiction. This is a complicated area, so we encourage administrators and HR professionals who need assistance while undertaking the process of determining whether to proceed with an adverse employment action after an employee engaged in protected activity to call an OSBA/PACE pre-loss attorney, at 1-800-578-6722 or email@example.com.
Federal Retaliation Statutes
The same federal laws that prohibit discrimination based on race, color sex, religion, national origin, age, disability and genetic information also prohibit retaliation. There are over forty federal statutes that prohibit retaliation, but the most common seen in the public education context are:
- Title VII of the Civil Rights Act of 1964 - Title VII prohibits an employer from discriminating against any employee or applicant for employment because he or she has (1) opposed any discriminatory employment practice; or (2) made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under Title VII.
- The Age Discrimination in Employment Act (ADEA) – Protects employees from retaliation because the individual has made a complaint of age discrimination.
- The Equal Pay Act (EPA) - The EPA prohibits an employer from retaliating against an employee who asserts his or her rights through a complaint regarding discriminatory pay practices or a filing of a complaint with the EEOC.
- The Americans with Disabilities Act (ADA) – Protects employees from retaliation because he or she has requested an ADA accommodation or made a complaint of disability discrimination, or assisted or participated in an investigation under the ADA.
- The Family Medical Leave Act (FMLA) - Protects employees from retaliation for applying for, using, making a complaint about, or requesting information regarding family medical leave.
- The Uniform Services Employment and Reemployment Rights Act (USERRA) –An employer must not retaliate against an individual because the individual has taken an action to enforce a protection, testified or otherwise made a statement in or in connection with a proceeding, participated in an investigation, or, exercised a right provided for by USERRA.
- The Occupational Safety and Health Act (OSHA) – Protects employees from retaliation because an employee has made a complaint about occupational (workplace) safety.
- The Fair Labor Standards Act (FLSA) - The FLSA prohibits an employer from retaliating against an employee because he or she has made a wage and hours complaint.
- Title IX of the Civil Rights Act of 1964 - No employer shall intimidate, threaten, coerce, or discriminate against any individual for the purpose of interfering with any right or privilege secured by Title IX, or because he has made a complaint, testified, assisted, or participated in any manner in any Title IX investigation, proceeding or hearing. Each of these statutes provides for a private right of action for employees who believe they have been retaliated against for making a complaint or engaging in protected activity.
Oregon Retaliation Statutes
Oregon also has a number of statutes that create causes of action for retaliatory action. The most common in the public education context are:
- ORS 659A.199 – Protects an employee who (in good faith) reports information that the employee “believes is evidence of a violation of a federal or state law, rule or regulation.”
- ORS 659A.030(1)(f) – Protects employees from retaliation for opposing unlawful discrimination (such as race, sex, national origin, or sexual orientation discrimination).
- ORS 659A.040 – Protects employees from retaliation for applying for worker’s compensation benefits (regardless of whether the claim was granted).
- ORS 659A.230 – Protects public employees from retaliation for reporting criminal activity.
- ORS 652.355 – No employer shall retaliate against any individual for making a wage claim or discussing, inquiring about or consulting an attorney about a wage claim.
- ORS 659A.096 – Protects employees from retaliation for applying for or even inquiring about taking family medical leave.
- Senate Bill 454, OAR 839-007-0065(2) – It is unlawful for an employer to retaliate or in any way discriminate against an employee because the employee has inquired about the provisions of the sick leave law, submitted a request for or taken sick time.
Each of the statutes above provides for a private right of action for employee who believe they have been retaliated against for engaging in the activity protected by the statute. In addition, while this is outside the scope of this primer, it is an unfair labor practice for a public employer to interfere with, restrain or coerce employees in or because of the exercise of rights guaranteed in Or. Rev. Stat. § 243.662 (Rights of Public Employees to Join Labor Organizations).
Constitutional and Common Law Protections
There are also constitutional and common law protections against retaliating against public employees in Oregon.
- Free Speech - Public employees (employees of school districts, community colleges, and charter schools) are protected from unlawful retaliation for exercising free speech rights granted by the First Amendment and the Fourteenth Amendment of the US Constitution. This means that when an employee exercises his or her right to free speech, the employer cannot retaliate. In order to be protected by the First Amendment, (1) an employee’s speech must be made “as a citizen on a matter of public concern,” and (2) the agency’s interest in nondisclosure must not outweigh the employee’s interest in freedom of expression.
- Public Policy – Oregon courts have found that termination for violation of social/public policy can lead to a claim for wrongful discharge. A few examples of underlying protected actions include: complaining about the employer’s fire code and safety violations, making reports to a Board regarding questionable accounting practices, serving on jury duty, refusing to disclose confidential customer information. Courts have generally recognized two types of motives that are “socially undesirable” enough to warrant employer liability: (1) employees discharged for fulfilling or desiring to perform an important societal obligation or duty; and (2) employees who are discharged for exercising employment-related rights of public importance.
As you can see above, even if there is no statute protecting the employee’s activity, retaliation could still be considered unlawful under certain circumstances.
It is also important to note that school administrators, board members, coaches and other school employees can be sued in their individual capacity in lawsuits claiming unlawful retaliation under the Fourteenth Amendment, as the Oregon Tort Claims Act does not apply.
Now that we have a thorough understanding of what types of activities are considered protected, what should a school administrator do when faced with a situation where an employee has engaged in protected activity? How can a district limit their liability in these situations, particularly when proceeding with an adverse employment action?
Suggestions for Dealing with Employee Who Have Engaged in Protected Activity
- Policies. Schools should have robust policies prohibiting retaliation, and when an employee engages in a complaint process or procedures, this retaliation policy should be reiterated to them and to anyone participating in the investigation process in writing.
- Recognize and properly direct protected activity. Supervisors (including superintendents, principals, assistant principals, and HR staff) should be trained to recognize protected activity and respond appropriately. Direct individuals with complaints to complaint procedures, and have individuals who inquire about protected leaves or accommodations be directed to HR or business officials who are trained to handle such requests.
- Limit knowledge and discussion of protected activity. Keep information about the protected activity on a strictly “need to know” basis. For example, if an employee inquiries about the availability of OFLA leave to HR, that information does not need to be shared with an immediate supervisor. Or, if a teacher complains of a possible safety violation in her portable classroom to the superintendent, the identity of the individual who made the complaint does not need to be shared with the principal.
- Engage prompt and neutral investigation of acts of retaliation. A complaint of retaliation should be treated similarly to any complaint regarding discrimination or harassment. In order to limit situations which may lead to additional retaliation, neutral investigators should be used whenever possible and findings should only be shared with those who are required by policy to receive those findings.
- Don’t overreact or make it personal. When an employee makes a complaint about wages, discrimination, or safety issues, it can feel as if it is a personal attack on the managers and supervisors at the school. Develop a thick skin and understand that dealing with these issues is part of being a successful school administrator.
- Beware of well-intentioned retaliation. Transferring an employee who has alleged sexual harassment against a supervisor may seem like a safe way to prevent future hazardous interactions, but this action may constitute retaliation unless the employee wants to be transferred and the transfer is to a comparable position.
- Be careful not to isolate a complaining employee. A supervisor who has been accused of discrimination may want to avoid the complaining employee, but this avoidance may constitute unlawful retaliation. Continue treating this employee the same as other comparable employees, unless directed otherwise by an attorney or HR professional.
- Thoroughly document continuing underperformance or disciplinary matters. Just because an employee has engaged in protected activity does not mean they get a free pass to perform poorly or violate policies. If disciplinary action or a negative employment evaluation occurs in close proximity to the protected activity, however, the district should be prepared with thorough documentation to show that the action was necessary and not related to the protected activity.
- Follow up. Without divulging confidential information, let the complaining employee know the results of your investigation and what corrective steps you are taking. Make sure the employee knows about the school’s anti-retaliation policy and that he or she must report any suspected incidents of retaliation.
Sample Retaliation Cases Involving Schools
Huffman v. Scappoose Sch. Dist. No. 1 J, 3:14-CV-00941-MO, 2015 U.S. Dist. LEXIS 97971 (D. Or. July 28, 2015). Plaintiff, a long time teacher, filed an age discrimination complaint with the EEOC. After filing, she believed she was subject to retaliation from district in the form of: a plan of assistance, a negative evaluation, harassment. While the court dismissed teacher’s underlying age discrimination claim, it allowed the retaliation claim to proceed. The teacher showed that principal had knowledge of the EEOC filing, the short time interval between the adverse action and protected activity (two months) satisfied the initial burden of a causal relationship, and the district did not provide adequate evidence of non-discriminatory motivations for the plan of assistance and negative evaluation. The district put forth no evidence to support the notion that the teacher’s performance had dramatically suffered. As a result, the defendant’s summary judgment motion was denied as to the retaliation claim. Takeaway: District should be especially careful to have thorough documentation to support any adverse employment actions, including plans of assistance and negative evaluations, which occur in close proximity to protected activity.
Spees v. Willamina Sch. Dist., 30J, 03-1425-KI, 2004 U.S. Dist. LEXIS 21759 (D. Or. Oct. 19, 2004). After more than 25 years of experience, the school district discharged the teacher because his teaching license had been suspended by TSPC after two incidents of inappropriate physical and verbal confrontation of students. The evidence showed that the teacher had received administrative warnings regarding his behavior and that several parents requested that their children not be placed in his class. The dismissal occurred while he was out on unpaid leave following OFLA leave. The court found no wrongful retaliatory discharge because there was no evidence that the teacher ever complained about discrimination. Further, there was no evidence of retaliation for the teacher's medical leave under OFLA. The District did not terminate teacher when he asked for a medical leave or when his paid leave ended. Teacher continued on an unpaid leave for another seven months before his termination. The court found that the gap is too long to support a retaliation claim without other evidence. Takeaway: District can terminate an employee while out on an extension of a protected leave, if the improper conduct that is basis for termination is well-documented and unrelated to protected activity.
Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 269, 121 S. Ct. 1508, 1509 (2001). Female school district employee alleged that, during a review of job applicant files, male co-workers' reactions to an applicant's sexually explicit comment constituted sexual harassment. She also alleged that she suffered adverse employment actions for complaining about the alleged harassment. The Supreme Court first held that any punishment suffered by respondent for complaining did not constitute actionable retaliation, since the incident itself did not violate Title VII. The conduct of respondent's co-workers at most constituted an isolated incident which could not be deemed sufficiently severe and pervasive as to alter the terms and conditions of respondent's employment. Further, district's intention to transfer respondent, expressed shortly after the lawsuit was filed, did not establish a causal connection between the transfer and the lawsuit based on temporal proximity, since district was not served with the complaint until after the statement was made. Takeaway: Underlying activity needs to be protected to constitute retaliation, and regardless, if supervisor is not aware of protected activity, he or she cannot unlawfully retaliate.
Barker v. Riverside County Office of Education, 584 F. 3d 821 (9th Cir. 2009). A teacher of disabled students filed a complaint with the U.S. Department of Education, alleging that defendant school district denied its disabled students a free appropriate public education. Thereafter, plaintiff allegedly suffered retaliation from supervisors which led to her constructive discharge. The school district argued that she lacked standing to sue under federal laws. The appeals court found that the ADA’s § 504's anti-retaliation provision granted standing to non-disabled people who were retaliated against for trying to protect the rights of the disabled. Because plaintiff engaged in activities opposing policies that allegedly violated the ADA, she had standing to pursue her claim under 28 C.F.R. § 35.134(a) and because she alleged that she was intimidated for her advocate role, she had standing under § 35.134(b). Takeaway: Even those complaining on behalf of others can be retaliated against, and districts must be cognizant not to retaliate in those situations.
Steele v. Mayoral, 231 Or. App. 603, 618, 220 P.3d 761, 770-71 (2009). High school counselor alleged that after she made a sexual harassment complaint regarding principal’s conduct, she was retaliated against by principal and other employees. She claimed that: the principal made threatening remarks and watched her closely for three days after the complaint, she received an e-mail that said, "Quit"; found one morning that someone had entered her locked office and turned the heat up; was not asked some questions that she, as lead counselor, should have been asked; and felt hostility from other employees. The Court held that even if we assume that the conduct was prompted by plaintiff's complaint of harassment, that conduct did not deter plaintiff from making additional reports regarding the principal’s conduct, including a complaint to district administrators. The e-mail and increased heating incidents were isolated incidents that were investigated and did not recur. Although plaintiff's work environment caused her some distress, the actions as a whole did not rise to the level of a material adverse action that would deter a reasonable employee from invoking the protections of Title VII. Takeaway: Minor acts may not rise to level of retaliation, but districts can protect themselves by promptly and thoroughly investigate all complaints regarding retaliation.
Vivas v. Fresno State (California Superior Court, 2007). A long-term (14 year) volleyball coach was informed in December 2004 that her contract would not be renewed, ostensibly because she had failed to meet her performance objectives. Vivas filed suit against Fresno State, claiming, amongst other things, she was fired in retaliation for her whistleblowing on gender discrimination within the department. Jurors in Vivas’s three-week trial in the summer of 2007 found truth in Vivas’s allegations that she was terminated for advocating gender equity, including efforts to hold the department to its promises under the Corrective Action Plan, particularly, to elevate women’s athletic programs to tier one status and to move women’s volleyball competitions from the gymnasium to the university’s premier venue, and for advocating multi-year contracts for successful, long-serving female coaches. The jury awarded $5.85 Million – $1.75 Million more than what she was suing for - the highest jury award in a title retaliation IX case. Fresno State appealed, but later settled for $5.2 million, including attorney’s fees. Takeaway: Retaliation cases can be time consuming and very expensive, and juries often sympathize with whistleblowers.
Again, this is a complicated area, so we encourage district administrators to seek assistance while undertaking the process of determining whether to proceed with an adverse employment action after an employee had engaged in protected activity.
 Retaliation – Making it Personal, www.eeoc.gov/laws/types/retaliation_considerations.cfm, (last visited Jan. 4, 2016).
 Steiner v. Showboat Operating Co., 25 F.3d 1459, 1464-1465 (9th Cir. 1994).
 Miller v. Fairchild Indus., Inc., 797 F.2d 727, 731 (9th Cir. 1986).
 Thompson v. N. Am. Stainless LP, 562 U.S. 170 (2011).
 CBOCS W., Inc. v. Humphries, 553 U.S. 442 (2008).
 Jackson v. Birmingham Bd. of Educ., 544 U.S. 167 (2005).
 The DOJ OCR issued a “Dear Colleague” letter in April 2013 to “remind school districts, postsecondary institutions, and other recipients that [Title IX] retaliation is also a violation of Federal law.” Dear Colleague Letter, Office for Civil Rights, U.S. Department of Education (April 24, 2013), www.ed.gov/about/offices/list/ocr/letters/colleague-201304.html
 Pickering v. Bd. of Educ. of Twp. High Sch. Dist. 205, 391 US 563, 568 (1968).
 Love v. Polk Cnty. Fire Dist., 209 Or. App. 474 (2006).
 Darbut v. Three Cities Research, Inc., 06-627-HA, 2009 U.S. Dist. LEXIS 55070 (D. Or. Mar. 30, 2009)
 Nees v. Hocks, 272 Or. 210 (1975).
 Banaitis v. Mitsubishi Bank, 129 Or. App. 371 (1994).
 Houston v. Yoncalla Sch. Dist. No. 32, No. 6:13-cv-01318-AA, 2014 U.S. Dist. LEXIS 95041 (D. Or. July 11, 2014)
If you have questions, please contact an OSBA/PACE pre-loss attorney, at 1-800-578-6722 or firstname.lastname@example.org.