She claimed retaliation, but she was missing this 1 simple thing

To prove unlawful retaliation, three critical requirements must be met. And when any one of them is missing, the retaliation claim cannot succeed.

First, the employee must have engaged in what is called protected activity. Second, they must show their employer took what is known as an adverse action against them. And third, they need to show a causal connection between the protected activity and the adverse action. In other words, they have to show that their employer took action against them because they engaged in protected activity.

In a new decision, a federal appeals court ruled that a former employee’s retaliation claim faltered on the third requirement: She did not show the required causal connection between protected activity and adverse action.

She claims retaliation

The plaintiff in the case was Barbara Lindsay, who worked as an administrator at Emily Griffith Technical College in Denver. In the course of the case, she described herself as “highly qualified and successful,” adding that she had received great evaluations from superiors in addition to “praise from her subordinates.”

When the college embarked on a process to replace its departing executive director, Lindsay was part of a panel that evaluated candidates for the post.

One of those candidates was Tisha Lee, who is Black. Lindsay said that after an interview, another panelist raised a concern about Lee’s grammar and said that “being a person of color, she should be held to a higher standard.” The other panelist also allegedly questioned Lee’s fundraising abilities.

Lindsay responded by defending Lee, including by saying that she had worked with Lee and that Lee had connections with respect to fundraising. Her advocacy was in vain, as Lee was not selected for the job.

Bias charges and alleged retaliation

Lindsay told Lee about the negative comments that allegedly were made about her, and Lee filed bias charges with the EEOC and the Colorado Civil Rights Division.

In those charges, Lee did not identify Lindsay as a source.  Nor did she say anything to anyone at the college about Lindsay’s role in the charges that were filed.

Lindsay said the new executive director was openly hostile toward her, and Lindsay was discharged about six weeks after the new director took over.

In her mind, she was let go because she advocated for Lee. But the college said it let her go following an investigation that showed Lindsay paid an employee for work he did not do, favored employees, and had interfered with the hiring process on a different occasion.

Lindsay’s lawsuit against the school asserted unlawful retaliation. A lower court ruled against her, and she appealed.

Elements of retaliation claim spelled out

The U.S. Court of Appeals for the Tenth Circuit affirmed the lower court’s decision. The court explained that to win, Lindsay had to show:

• She engaged in protected activity
• The college took adverse action against her, and
• There was a causal relationship between the protected activity and the adverse action.

Lindsay’s case stalled at the third step, the appeals court explained.

Essentially, she had to prove that decision-makers discharged her because she objected to the alleged negative comments about Lee or because she gave Lee information to use to file her own charges of bias.

They didn’t even know

But she ran into a big problem: She did not show that anyone involved with the decision to let her go even knew that she defended Lee or helped her in regard to charges she filed. And without knowledge of the protected activity, the relevant decision-makers could not retaliate against Lindsay based on it, the court said.

All of the arguments Lindsay presented to support a finding of knowledge were based on “bare speculation,” it explained.

There was no room for an inference that anyone involved in the termination decision was aware of Lindsay’s protected activity at the relevant time, the court said. For that reason, it ruled that her retaliation claim was properly rejected.

2 takeaways

There are two key takeaways from the ruling.

First, remember that it is unlawful to retaliate against an employee because that employee has participated in an EEO process or has reasonably opposed conduct that EEO law prohibits. That is what Lindsay said happened.

Participating in an EEO process includes things like filing a charge or serving as a witness. It is important to remember that the ban on retaliation for participation includes a ban on retaliating for participation in a charge that lacks merit.

It is also illegal to retaliate against an employee because they opposed a perceived unlawful practice. Examples of conduct constituting such opposition include refusing to obey an order that is reasonably believed to be discriminatory and threatening to complain about alleged bias.

Second, an employer cannot retaliate based on protected activity if it has no knowledge of the protected activity.

This may seem like a point that is too obvious to mention, but the issue arises more often than you may think – just like it did in Lindsay’s lawsuit.

Lindsay v. Denver Public Schools, No. 22-1408 (10th Cir. 12/22/23).