Counterclaims Against Employees Who File Lawsuits Qualify as Workplace Retaliation
An employee may assert a claim for workplace retaliation when he/she is punished for asserting or assisting with a claim of employment discrimination or sexual harassment. One of the elements that must be established in order for such a claim to succeed is that the plaintiff suffer some kind of “adverse employment action” as a result of the complaint. Examples of such adverse employment actions include, but are not limited to, termination, demotion, cut in pay or transfer to less desirable location.
In Fei v. Westl AG, the plaintiff brought suit against his employer, claiming that the company breached his rights under the Fair Labor Standards Act. The company then filed a counterclaim against the plaintiff, claiming that he misappropriated the company’s confidential information.
Judge Baer, of the Southern District of New York, found that the company’s counterclaim against the plaintiff was adverse employment action to support a claim of workplace retaliation. The court found that since the plaintiff alleged that “he has suffered harm to his reputation, intimidation, legal costs and delay as a result of the counter claims,” the counterclaims impacted his ability to secure prospective employment.
The court also relied upon the interesting timing of the counterclaims, noting that if the company was going to file a claim against the employee, why would it wait until shortly after the plaintiff filed his own claim? In short, if a company responds to an employee’s claim under the New York City Human Rights Law with a counterclaim, a company may be exposed to a claim for workplace retaliation.
