Thursday, September 8, 2022

How broad is potential liability for retaliation? THIS broad.

In 2016, Tom Pettay sued his former employer, DeVry University, for age discrimination. The trial court dismissed Pettay's lawsuit on summary judgment. Following that dismissal, the employer filed a motion asking the trial court to award them $4,004.39 for the cost of deposition transcripts used in support of the summary judgment motion. While Pettay's appeal of the court's award of costs was pending, the Ohio Supreme Court held that a prevailing party cannot recover the costs of deposition transcripts. 

As a result, Pettay again sued DeVry (or, more accurately, its successor in interest, Cogswell Education), claiming that it retaliated against him by pursuing a frivolous motion for the costs of the deposition transcripts. 

In Pettay's words:
There is no business reason why a party would spend tens of thousands of dollars to recover $4,000 in deposition transcript costs from an hourly warehouse worker, other than to retaliate by litigation against a former employee who had the audacity to file a discrimination case, and to try to make an example of him to discourage other prospective plaintiffs from asserting their rights, which could come at a considerable cost to them if they did so.

The trial court dismissed Pettay's retaliation lawsuit. The appellate court reversed, holding that "the filing of a motion for costs and the subsequent litigation regarding that motion may constitute an adverse employment action, even though that litigation occurred years after the employee was terminated." In other words, the fact that Pettay was an ex-employee when the retaliation alleged occurred is irrelevant to his retaliation claim, as long as the alleged adverse action could reasonbly dissuade others from engaging in protected activity.

Whether against a past or present employee, retaliation is a terrible idea. Don't do it. Employers, the courts are not your friend on this issue.