once said, “It is impossible to suffer without making someone pay for it; every complaint already contains revenge.” Litigation, however, is no place for revenge. The question I am most asked by clients after they are sued, besides, “How much is this going to cost me,” and “After I win I can collect my attorneys’ fees from that bastard,” is, “How do I countersue that bastard for _________?”
A recent Ohio appellate decision will, unfortunately, muddle the answer to this question.
For various reasons, counterclaims against former employees against whom you are pitted in discrimination litigation are bad ideas. For one, unless you’ve suffered real, tangible harm, there exists a real risk that juries will punish you for a perceived pettiness. Secondly, under well-established law, even a former employee is protected from retaliation-by-counterclaim from suits that are objectively baseless.
In Lucarell v. Nationwide Mutual Ins. Co., an Ohio appellate court took an employer’s protection from these retaliation claims one step further, by concluding that Ohio’s anti-retaliation statute does not extend its protections to former employees, and that the filing of a counterclaim against an ex-employee cannot constitute an adverse employment action protected by that statute because the plaintiff is no longer employed.
That opinion, however, neither jives with the statute itself (which speaks of retaliation against any person, not any employee), nor the key Ohio Supreme Court decision (and those of other courts) interpreting that statute (which permits a former employee to pursue a claim for retaliation). Thus, my fear is that employers will incorrectly grab on to Lucarell as an improper justification for filing counterclaims against former employees.
Let me cut through all this legal mumbo-jumbo and finish with this thought. Merely because companies may have a right to file a claim does not mean ultimate success on that claim. Indeed, the decision whether to pursue a claim against an employee or ex-employee who has brought a discrimination claim must be carefully thought out, and not merely filed as a knee-jerk reaction to being sued. And, depending on the strength and merit of the counterclaim, its filing very well might result in more harm than good.
Or, as the great philosopher Eddie Vedder said, “The best revenge is to live on and prove yourself.”