damnedif

Jujitsu (actually spelled “jujutsu”) is a martial art where one uses the opponent’s force against himself rather than confronting it with one’s own force.  This is what employment lawyers are doing when they set you up for the Retaliation Trap.

The Retaliation Trap is simple in concept, but usually takes considerable skill and knowledge to set effectively.  It works best on arrogant, unwary employers with an intemperate owner or supervisor, especially if not represented by competent legal counsel.  It works like this.  An employee is having some trouble at work.  The employee senses that his or her days are numbered.  The employer is papering the file and gearing up for termination.  The employee visits a lawyer to see what can be done.

There is almost no direct force to stop a termination.  Employers always have the power to fire an employee, even where they don’t have a right.  That power, however, can be reversed to cause a self-inflicted wound.  The clever employee’s lawyer in the above situation will look for some colorable legal claim that the employee may have, and have the employee file some sort of complaint or charge.  The Retaliation Trap is set.  If the employer springs the trap by firing the employee, the employee may have a good claim for retaliation.  Believe it or not, this is true even if the original complaint was without merit. At least in Massachusetts, as long as the employee had a good faith belief in the complaint or charge, you are liable for full damages if you retaliate against the employee who filed the complaint or charge.

A recent appeals court decision, with a huge verdict (even after an 80% remittitur for the emotional distress damages), shows a significant self-inflicted wound when springing the Retaliation Trap. The case is reported as Trainor v. HEI Hospitality, LLC, 669 F.3d 19 (1st Cir. 2012).  According to the reported facts, the plaintiff and his lawyer were negotiating ongoing employment terms with the defendant, including whether the plaintiff would be relocated to an inconvenient location.  When the negotiations began to deteriorate, which could have resulted in either the end of the plaintiff’s employment or other unfavorable terms, the plaintiff’s lawyer filed a Charge of Discrimination based on age with the Massachusetts Commission Against Discrimination (“MCAD”).  He promptly forwarded a copy to the apparently hotheaded executive of the defendant (good move, he put them on notice).  The trap was set.

The executive fired the plaintiff three hours after receiving the Charge of Discrimination.  Not surprisingly, the jury found for the plaintiff on the retaliation claim, even though it rejected the age discrimination claim.  Other than cutting down some of the damages (the jury awarded $1,000,000 in emotional distress damages, the Court cut it down to $200,000, or a re-trial), the Appeals Court affirmed the verdict.  The jury and the Court also awarded $500,000 in back pay, $750,000 in front pay, and $550,000 in attorneys’ fees and costs.  The first three figures were doubled upon a finding of an intentional violation of the statute.  The rash firing appears to have cost the employer about $4 million, not to mention its own attorneys’ fees and costs.

In my estimation, jurors will punish you if they think you abused your power and retaliated against someone who made a complaint, even where the underlying claim cannot be proven.  The $1,000,000 emotional distress damages award could be seen as de facto punitive damages.  The Trainor makes it clear that where there are different versions of the facts, it is wholly the jury’s prerogative to decide for one side or the other.  This unfortunately means that every time you fire someone who has complained of discrimination, or some other claim (there are many different types of statutes that punish retaliation), you run the risk that a jury will think you retaliated.  Even if you didn’t and you planned to fire the employee anyway.

If you need help avoiding the Retaliation Trap, call me at 617.338.7000.

By Adam P. Whitney