Associational Retaliation

The Middle District of Florida recently held that to establish a prima facie case under the Florida Private Whistleblower Act (FWA), § 448.102(3), Fla. Stat., a plaintiff must show an actual violation of a law, rule or regulation. Graddy v. Wal–Mart Stores E., LP, No. 5:16-CV-9-OC-28PRL (M.D. Fla. Feb. 14, 2017).

On August 13, 2013, the Sixth Circuit reinstated a retaliation claim under Title VII, reversing the dismissal of the claim on jurisdictional grounds for failure to exhaust administrative remedies with the EEOC.   Adamov v. U.S. Nat’l Bank Assoc., No. 12-cv-6114 (6th Cir. 2013).  

The Sixth Circuit recently held that Michigan state employees could base First Amendment political-affiliation and protected-speech retaliation claims on their perceived political affiliations, even absent actual affiliations with the party in question.  Dye v. Office of the Racing Comm’n, No. 11-cv-1828 (6th Cir. Dec. 18, 2012).   It’s important for government and private employers alike to appreciate the import of this decision, and it’s noteworthy that this decision widens a split between the Sixth and Third Circuits.

The U.S. District Court for the Northern District of Illinois granted a company summary judgment on an “associational retaliation” claim brought under Title VII by a temporary worker claiming the company ended her assignments because her (late) husband, who was an employee of the company, complained of discrimination.  Wilcox v. The Allstate Corp., No. 11-cv-814 (N.D. Ill. Dec. 17, 2012).   This case shows that associational discrimination claims are continuing to be pursued following U.S. Supreme Court’s decision in Thompson v. North American Stainless, No. 09-cv-291 (Jan. 24, 2011), but are susceptible to dismissal where:  (i) the plaintiff is not an employee of the defendant company and the defendant did not have a hand in the challenged adverse action; (ii) there is doubt as to whether the person with whom the plaintiff was affiliated actually engaged in protected activity; and (iii) the causal nexus between the affiliate’s protected activity and plaintiff’s adverse action is tenuous.  Proskauer’s Steven J. Pearlman served as lead counsel for the defense.