Employees who engage in some form of protected activity—such as filing an EEOC complaint, participating in a discrimination case or complaining about possible discrimination to the company—are protected from retaliation for doing so.
But often employees who complain about one thing end up suing on entirely different grounds. That can happen, for example, when the employee hires an attorney who knows the initial complaint won’t fly, but discovers another, better claim.
If you have a copy of the original internal complaint and it doesn’t mention the type of discrimination the employee eventually sues over, you should be able to get the court to dismiss a charge of retaliation for engaging in protected activity.
Recent case: Sue Ellen Moncrief sued her former employer, the New York Public Library, alleging discrimination and retaliation for complaining about discrimination.
The basis for her retaliation claim was an e-mail she had sent to the library. But the library had a copy of the e-mail, which never mentioned that Moncrief believed she was being discriminated against.
Therefore, reasoned the 2nd Circuit Court of Appeals, she had never engaged in protected activity and could therefore not have been retaliated against for doing so. (Moncrief v. New York City Public Library, No. 07-4468, 2nd Cir., 2009)
Final note: If you don’t have a record-retention policy, work with your attorneys to develop one. You’ll need employee correspondence if you’re ever sued. Plus, there are specific rules about what documents you must keep.
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