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Retaliation claim: employer must know of protected activity

An interesting case recently came to our attention. It isn't from Wisconsin, but it illustrates how tricky retaliation claims can be.

A female employee received a promotion to team leader at work, but she was surprised to find that the pay raise that she believed would come with her expanded responsibilities was nowhere to be seen. It took her a full six months to receive the raise that she said had been promised with the promotion.

She said she only got the raise by repeatedly complaining to the company's human resources department, and even then, she claimed, the company shorted her on back pay. Notably, in her escalating discussions with human resources, she threatened to file a complaint with "Equal Employment Opportunity," what the court took as an obvious reference to the Equal Employment Opportunity Commission.

Soon after this, she lost the team lead position (though suffered no reduction in pay). In her claim, she indicated that the demotion was in retaliation for her threats to report the company to the EEOC.

She also received a "final" written warning that explicitly mentioned her threat to complain to the EEOC, as well as the circumstances surrounding the firing of a co-worker. The company relied on these issues as well as claims that she had mishandled some company files when it fired her.

She claimed the firing was retaliation, because she did consult with the EEOC about her situation. The problem, however, was that she could not prove that the company knew that she had done so. She could only prove that the company was aware of her threat to go to the commission.

She also claimed that the company's actions had been discriminatory on the basis of gender. However, her allegations were too vague for the court: Merely being "disrespected" by coworkers, many of whom were also women, was not enough.

The trial court dismissed her claim, and the appellate court affirmed.

Source: Human Resources Journal, "Woman and Former Bosses Wind up in Court Over Pay Raise Dispute," July 19, 2012

Our firm handles similar situations to the one discussed in this post. If you would like to learn more about our practice, please visit our Milwaukee retaliation and wrongful demotion page.

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