Counterclaims May Sometimes By Some Courts Be Deemed Retaliation

In 2008, Fourth Circuit held in Darveau v. Detecon, Inc., 515 F.3d 334, 340-41 (4th Cir. 2008) that a counterclaim brought against a plaintiff in an action under the Fair Labor Standards Act (“FLSA”) may constitute an adverse employment under the FLSA’s retaliation provision. Darveau, 515 F.3d at 343. Other courts have held that the potential chilling effect of an employer’s lawsuit against a discrimination or retaliation plaintiff is an adverse action for retaliation purposes because the lawsuit might dissuade a reasonable worker from engaging in protected conduct. See, e.g., Steward v. Gonzales, No. 03-1962, 2007 WL 647003, *15 n.42 (E.D. La. Feb. 28, 2007) (holding that retaliatory conduct following the filing of plaintiff’s lawsuit sufficiently supported a claim for retaliation, particularly where the Supreme Court had abrogated the Fifth Circuit’s “ultimate employment action” requirement in Burlington); Rosania v. Taco Bell of Am., Inc., 303 F. Supp. 2d 878 (N.D. Ohio 2004) (employer’s filing of counterclaim can constitute retaliation under the Family and Medical Leave Act); Gill v. Rinker Materials Corp., No. 3:02-CV-13, 2003 WL 749911, at *5 (E.D. Tenn. Feb. 24, 2003) (concluding that “the adverse action requirement for a retaliation claim encompasses an allegedly bad faith counterclaim brought by the employer against its former employee”); Nesselrotte v. Allegheny Energy, Inc., No. 06-01390, 2007 WL 3147038, at *12 (W.D. Pa. Oct. 25, 2007) (rejecting in light of Burlington Northern assertion that counterclaims cannot be retaliatory).

You can see my article on this topic here.

Many thanks and attribution to Jason Zuckerman of The Employment Law Group for bringing this topic to my attention.