Inside the Exclusive: Disciplining Employees Who Have Filed Complaints—Without Inviting Retaliation Claims

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Will Ruggiero: Hi everyone, this is Will Ruggiero reporting from beautiful Colorado Springs. We’re here at our 2025 Corporate Counsel Exclusive at The Broadmoor, about to present with my good colleague, Stacy Bunck, on retaliation claims this afternoon and tomorrow afternoon. We’re very excited to be here today. For those of you I have not met, I’m a labor and employment attorney based in Stanford, Connecticut. My practice is focused on employment litigation and advice and counsel.

Stacy Bunck: And my name is Stacy Bunck. As Will mentioned, I’m in Kansas City, and my practice is almost exclusively on litigation in Kansas and Missouri. And so, with that, we’re here today to talk about retaliation and best practices to avoid retaliation claims.
So as we all know, retaliation claims are independent from an underlying claim such as discrimination or harassment. And they are not contingent on the employee winning the underlying claim. And depending on the facts, retaliation claims may actually be even stronger than the underlying discrimination or harassment claim.
Retaliation is unlawful, of course, under many statutes, including Title VII, ADA, FMLA, OSHA and state law. So, in Missouri where I practice, for example, after the legislature eliminated individual liability in 2017, we have seen a surge in workers’ compensation retaliation claims. And those claims of course are strategically filed because they are not removable in Missouri. So, to remain in the much more plaintiff friendly arena of Missouri State Court savvy plaintiffs’ counsel look for opportunities to file workers’ comp retaliation claims wherever possible in Missouri.
Now as we know, the definition of adverse action is extremely broad, and I’ll speak in a minute about some of the triggers that we see that lead to retaliation claims. In 2016, I tried a retaliation case in Missouri State Court where the judge allowed the jury to consider whether parking by someone and glaring at someone was illegal retaliatory behavior. So, definitely anticipate that there continue to be cases where retaliation is broadly considered.
And of course, as we know, retaliation, the key in retaliation is causation. And so, wanting to switch over quickly to common retaliation allegations that we see on the litigation side, and what prompt people to file claims. So first off, of course, is there the situation of temporal proximity? So for example, when someone complains of harassment, and is informed two days later that they are terminated, that often triggers people to find an attorney and in turn file a retaliation claim.
Of course, we also see the situation where someone is a subject of negative comments after they’ve made a complaint, which they believe to be attributed to having made that complaint. We also see the situation of people being excluded or singled out after they’ve complained, or at least perceiving they’re excluded or singled out, and therefore making a retaliation claim.
Another common practice that we see is when someone complains that their workload has increased after they’ve complained, and they believe it’s tied to that complaint. We also see cases where someone has been issued discipline that could be perceived as new, sudden or trivial, or perhaps placed on a PIP for the first time. And then finally we see a trend of people complaining that a threat has been made about their job after they have complained. And so, with those common characteristics in mind, Will, have you seen an increased prevalence in retaliation claims?

Will Ruggiero: Oh, absolutely, Stacy, and thank you for that background. I’ve seen it. I think my clients have seen it. And I can tell you that the EEOC believes that there’s been an increase in retaliation claims. For example, in its fiscal year 2025 budget justification, it referred to retaliation claims as persistent and urgent problem in the American workplace. And it noted that allegations of retaliation have increased exponentially over the past 20 years.
And that doesn’t account for the fact that state agencies are handling retaliation claims and our clients, and we speak to them on a regular basis when, for example, an employee complains about something like harassment or discrimination, and they’re trying to figure out how to handle that pretty sensitive situation. And I will note sort of anecdotally that sometimes those complaints seem to follow things like being placed on a performance improvement plan, things like being subject to discipline. Maybe they get wind that there’s a form of layoffs on the horizon. And sometimes you see employees raising their concerns at that point. And the question that faces employers at that point is how do you deal with those to avoid claims or at least mitigate the situation?
Back to the prevalence of claims, pretty amazingly, the EEOC reported in fiscal year 2024 that almost 89,000 charges were filed with the agency across the country, and almost half of those alleged some form of retaliation. Out of the 111 lawsuits that the EEOC filed, 40% of them alleged retaliation. And funny, the winners for most EEOC charges out of all states happened to be California, Texas, Florida, New York, and Illinois. So, if you live in those states or operate in those states, congratulations.
So putting aside the prevalence of the claims, as employers trying to deal with these issues in real time, what are some best practices? When we have a conversation with an employer about how to avoid a lawsuit or successfully defend against a lawsuit that alleges retaliation, what are we looking for, or what are we giving them advice to do prospectively to sort of mitigate these issues before they happen?
And I can think, in my opinion, one of the most important things is promoting contemporaneous candid documentation of issues. For example, if you have a poor performer, address those issues, and ideally have a process for addressing those issues formally. And when I say formally, best practice in writing and with the employee before that employee complains or has the opportunity to complain. Because when courts and agencies look at these situations, oftentimes what they’re trying to figure out is did the performance issues or the disciplinary issues happen before or after the protected conduct? That’s because there’s the importance of temporal proximity, meaning the timing of the adverse action. Does it relate or tie to the timing of the protected conduct? Again, someone complains and then is subject to increased scrutiny in their performance. That could be used as evidence of discrimination.
It’s also important for those written evidentiary documents or records to be as objective as possible. If there’s a performance issue, have emails, performance reviews, timelines, notes. Point out the objective issues. This person missed their target by this much, this person was late this many times. That kind of evidence is much more persuasive if there is a case.
And you need to apply discipline in termination decisions consistently. Sometimes you see situations where the employee alleges that they were subject to different performance standards than their peers. And you have to make sure that’s not the case, and that there’s not a good argument by that employee that that is the case.
It’s also a good practice, in my opinion, to keep any kind of performance or disciplinary regulation or management separate from those conversations you’re having about things like workplace accommodations. Sometimes you’ll see situations where an employee would have asked for an accommodation based on a potential disability, and for example may be underperforming at the same time. It’s a better practice to address are there ways we can help you in the workplace based on your disability separate from, well, last week your report was wrong, or this is your performance review for this year, and this is what we need to see you improve on. You want to keep those conversations separate. It creates a cleaner record in case there’s litigation.
And I think this is very important. When you have a situation, particularly if you know that the employee has complained about something or raised issues, you need to review that situation thoroughly. And in this day and age, you need to chase down some of those issues that might be on the sideline. Did the employee take a leave? Did they complain? Have we addressed the issue with the employee in real time? And at that point, did the employee raise potential issues? For example, did that employee say, “Hey, this isn’t fair because I feel like my supervisor is subjecting me to higher scrutiny because I complained,” or something like that? It’s important to at least chase down those issues in a proportional way so that you, if you’re challenged, have an ability to defend the decision ultimately.
And I think it’s helpful when analyzing these situations because they’re so fact-specific to think about how have courts viewed these situations, how have courts resolved lawsuits where the employee has alleged some sort of retaliation. And what facts matter to the court in those cases. So, Stacy, I don’t know if you have any examples of that.

Stacy Bunck: I do. And so, as I mentioned, I practice in D. Kan. And so, within the Tenth Circuit, and there was a recent Tenth Circuit decision on retaliation that I wanted to highlight for our audience. So, in this particular case, there was a long-term employee who had a history of workplace conflicts, including frequent arguments with coworkers and supervisors, unauthorized absences, and repeated violations of company policies.
Over several months, as Will recommends to his clients, as do I, management had documented these issues. And in this particular situation had required the employee to filter all outgoing emails through a supervisor due to negative and degrading messages and noting his insubordination and disruptive conduct. On July 29th of the year in question, the company leadership met and agreed they needed to terminate this employee’s employment based on his ongoing behavioral and performance problems. And Will spoke a moment ago about documentation of decisions. And in this case, that became paramount.
So as I mentioned July 29th, they make the decision to terminate. It has not been communicated yet, however. And on August 3rd, before the communication, the employee requested an ADA accommodation stating he needed to sit periodically at work due to back discomfort. Five days later, the company officially terminates him citing his documented history of workplace issues. Now not surprisingly, he sued, and he alleged that the termination was in retaliation for his ADA accommodation request, and argued the timing was suspicious. And he also in the course of discovery was able to determine that there was no record of the July 29th meeting where the company says it made the decision to terminate him in the company’s electronic file. So he argued in that particular case, this timing is suspicious and undermined by the fact that there is nothing in the electronic files, which in this day and age, a jury would assume there would be in that information.
In this particular case, it went up to the Tenth Circuit after the district court granted summary judgment. And the 10th Circuit affirmed and found in favor of the employer. And here in the Tenth Circuit analysis, they noted that the employee engaged in protected activity shortly before the termination, but they were persuaded by the employer’s well-documented reasons for termination, and concluded that those were non-retaliatory reasons.
Now as I mentioned in that particular case, as evidenced in the discovery process, the company did not have contemporaneous record of the July 29th meeting. So, to defend the claims at summary judgment, the company relied on declarations of the decision-makers, that the decision was in fact made on July 29th, and therefore could not have been retaliatory. The court noted that the lack of a contemporaneous note reflecting the pre-protected activity decision was not evidence of pretext.
And as I mentioned, I am almost exclusively involved in litigation. And one of the things that I do to set up my cases in the discovery process when I depose an employee, I get them to admit they do not know when the termination decision was made, who made the decision, and what factors were considered. And in a case like this, that’s paramount. Because then the company was able to submit declarations setting forth the timing, and they would be able to rely on the admission by the employee that the employee doesn’t know otherwise. I can’t speak to that particular case if that’s what happened, but that’s something to consider doing. And I advise my colleagues and clients to consider doing it in the discovery process to lock down that information in the absence of contemporaneous documentation. So that’s just one example. Will, I don’t know if you’ve seen anything in your corner of the woods.

Will Ruggiero : I have. And thank you, Stacy. That’s really interesting. It was a good result for the employer in that case. I’m going to talk about a less ideal result for the employer that I think comes with some good lessons for us. Really interesting case out of the Sixth Circuit from this July. And the interesting part about this case is that the plaintiff was involved in assisting one of her colleagues with an ADA accommodation. So she herself did not request an ADA accommodation, but learned that a particular coworker who reported to a different supervisor was having some problems with her health, and needed some accommodations in the workplace in the form of an overtime exemption.
And the allegation made in that case was that after the plaintiff in that case had helped this coworker, the supervisor of that coworker who needed the accommodation, had an agenda. And didn’t really have the opportunity to do that until several months later when he, for one week, took over the temporary management of her team, of the plaintiff’s team. And in that case, and almost immediately upon taking over the management of that team, the supervisor in question began scrutinizing the plaintiff time records, and found some pretty egregious violations of the timekeeping policy.
The allegation was that this particular employee was leaving for lunch, and yet still leaving herself on the clock, and was actually working in times when she wasn’t in the building because the employer could track exactly when the people and their employees entered or exited the building. So, her time records didn’t run or didn’t coincide with time she was in the building. And they considered that to be falsification of time records, which was a violation of the policy.
It’s investigated, not by the supervisor. The supervisor that allegedly wanted to retaliate or had retaliatory animus against the plaintiff wasn’t involved in the investigation. He referred it to HR and the supervisors. And they conducted an independent review of the situation and determined that that conduct occurred, and that additional conduct occurred that would warrant termination.
During their investigation, this plaintiff, while being interviewed, alleged that other employees were engaging in similar conduct, rounding times so that they were paid for time when they were on breaks and things like that. The employer didn’t review that allegation. So, there was no contemporaneous review of potentially whether there was a misapplication or a disparate application of the policy to this plaintiff.
Now, the court in finding that this particular employee stated enough facts to get a jury trial to survive summary judgment pointed out that the employer wasn’t retaliatory. The employer itself was not retaliatory, but the supervisor was. And applied a doctrine called the cat’s paw theory, which in simple terms states that if one of your supervisors has retaliatory animus and takes the opportunity to influence the actual employer, the decision makers to terminate, and those decision makers don’t conduct an objectively reasonable and objective review of the situation to independently verify that the offense is terminable, then they can be vicariously liable. The employer can be vicariously liable for the alleged retaliation of the supervisor, even if there’s something as you would think cut and dry as stealing time and terminable. So, I think the lesson learned from that case is that when you’re reviewing the situations, particularly when an employee raises allegations during the investigation of misconduct, it’s a good practice to chase those down appropriately.
So, we hope this is helpful. It’s very interesting. We’re going to be speaking about it in greater length later on today during our presentation on this topic. But I think the message to everyone listening is that retaliation claims are on the rise. They’re something we’re going to need to continue to deal with. And that there are ways to mitigate risk and best practices that can be implemented. So, we hope this was a helpful discussion.

Stacy Bunck: Thanks, Will.

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