It’s common sense: You can retaliate only if you know about whatever it is you are supposedly retaliating against. If you can show you never knew an employee was engaged in an alleged protected activity, it becomes impossible for an employee
to win a retaliation claim.
It’s a tricky situation, since you’re trying to prove a negative—that something didn’t happen. Fortunately, it’s easier than it might seem at first.
One way is to rely on how you ordinarily conduct business. For example, if you have a routine way of logging all the mail, faxes or e-mails you receive, you can prove that you didn’t receive something because you didn’t docket it along with all your other correspondence.
Recent case: Steve Evans sued his employer for disability discrimination and retaliation for complaining about disability discrimination.
The court disposed of the first complaint by concluding Evans wasn’t disabled.
On the retaliation claim, the company said it never received a copy of Evans’ supposed discrimination complaint. Evans had no proof that it did, either. The court dismissed the case because, without proof that his employer knew about his protected activity (the complaint), Evans couldn’t prove retaliation. (Evans v. MAAX-KSD, Inc., No. 08-1627, 3rd Cir., 2009)
Final note: Consider assigning one person to log everything that comes in through the mail or the fax machine. Back up and keep the log in a place that’s free from tampering. Have IT log incoming e-mail.
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