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We’re trial lawyers. Our core competency – above everything else – is trying cases to juries. And we specialize in beating giants.

RETALIATION

Federal and Minnesota Law on Employment Retaliation.

Minnesota is an “at-will” employment state. That means that your employer can fire you for any reason or no reason at all – even a stupid, incorrect, unfair, or unethical reason – provided that it’s not an illegal reason.

One illegal reason for making any employment decision about an employee is retaliation or reprisal for making a complaint or report about unlawful discrimination.  In order to be unlawful, the retaliation must be because the employee made a report of discrimination on the basis of race, sex, age, disability, or sexual orientation.

Some people think that employers can’t retaliate against employees for any reason – that’s not true.  In fact, it’s unfair, but employers can and do lawfully retaliate against employees for all sort of reasons.  The only thing that employers cannot retaliate against you for is you making a report of unlawful discrimination.

Your employer can’t make any decision about you – including hiring, termination, pay, raises, leave, suspension, hours, or discipline – on the basis of your having made a complaint of discrimination.  Making employment decisions even partly on that basis constitutes retaliation or reprisal discrimination – and is prohibited by Title VII of the federal Civil Rights Act and state law in the Minnesota Human Rights Act.

If you’ve got the courage to stand up for yourself or others against unlawful discrimination, then your employer can’t punish you for it.  Keep in mind that employees don’t need to say the magic words, “I’m making a complaint of discrimination.”  So long as the employee opposes discrimination in good faith, that’s enough to earn protection from retaliation.

For example, if any employee tells his employer that he’s been hearing racial slurs in the halls from other employees, that constitutes protected activity for which the employer cannot retaliate.  Or if you tell your employer that you believe a certain comment or practice is discriminatory, you’re protected from retaliation.  Or if an employee files a claim with the Equal Employment Opportunity Commission or Minnesota Department of Human Rights, or testifies in a discrimination lawsuit – those also constitute protected activities.  And, of course, if an employee files a lawsuit alleging discrimination, the employer cannot retaliate in any way.

Your employer will probably not admit that it terminated you, laid you off, or “restructured” you out of a job on the basis of you having made a complaint of discrimination.  Most employers are too sophisticated for that, and unlawful discrimination is often implicit, subtle, and nuanced.

The first thing we’ll do to prove your retaliation claim is establish that you “engaged in protected activity.”  That basically means that you made a report or complaint to a supervisor or manager about some form of unlawful discrimination.  We can rely on your testimony alone to prove this up.  Of course, if you’ve got an email or other document that you sent to your employer making the complaint – that’s even better.

Next, we’ll look to the “temporal proximity” of your complaint compared to the employer’s action against you.  That basically means we’ll see how much time passed between your report of discrimination and when your employer terminated you, wrote you up, reduced your hours, or took other action against you.  Many employers are so careless that they’ll take action against complaining employees within days or weeks.  If your employer took action against you very shortly after you made your discrimination complaint, that’s great evidence of retaliation – especially if you’ve worked there for a good amount of time.

Sometimes, when employers retaliate, they’ll make up and offer a different, non-discriminatory reason for termination.  For example, your employer might claim that it terminated you for poor performance.  In order to win on a discrimination claim, employment lawyers have to prove that the reason offered by the employer is a pretextual reason that is just being said so that your employer can avoid having to say the actual, illegal reason for termination – retaliation or reprisal.

We’ve got a couple ways to prove pretext on behalf of employees. First, we try to demonstrate that the reason given by the employer is just factually wrong. So, for example, if your employer claims that it terminated you for poor performance, but actually gave you high performance reviews for a number of years and has no written records of ever giving you discipline or counseling, then we’ve created a fact question for a jury regarding whether the reason given by the employer is the real reason for termination, or just pretext to mask retaliation.

Second, we can prove that the reason given by the employer isn’t the real reason for termination because it wasn’t equally applied to similarly situated employees. So, if your employer claims that it terminated you for poor performance, but your peers actually had equal or worse performance reviews than you – or documented performance problems that you didn’t have – than we’ve created a fact issue regarding whether the employer’s stated reason for termination is the actual reason, or just pretext to mask retaliation.

No – that’s the whole point.  If file a claim with EEOC or MDHR, or file a lawsuit, or even just make a report of discrimination or retaliation to your employer, then your employer cannot retaliate against you in any way.

This is absolutely a good question to ask as you make a decision on whether to pursue a case in court or not.  Starting an employment case is a big decision and you should know what your potential return is for the investment of your time and energy. The short answer is that the value of your case depends on a lot of things, like:
  • the strength of your case on the merits;
  • the amount of damages you’ve suffered;
  • whether your employer has the ability to pay a large amount; and
  • your tolerance for risk.

We get this question so much that we’ve created a separate, detailed page going through each of these factors, right here.  Check it out – it will give you a good idea of what to expect when we talk about your case at your free consultation.

For retaliation or reprisal claims, you may be entitled to back pay and front pay damages, emotional distress and other compensatory damages, punitive damages, treble damages (that means your actual damages get multiplied by 3), and your attorney fees and costs.

That’s a tough question to answer because there’s really no “average” settlement.  The value of an employment case depends on the strength of the case; the damages the employee suffered; the ability of the employer to pay a large amount (if the employer is insured, even better); and the employee’s tolerance for risk and willingness to go to trial.  Here’s a detailed breakdown of those factors. But we know that many employees looking for answers right now just want to see some numbers from actual settlements, so here are some numbers.
  • We represented a physician, Dr. Roswick, in North Dakota who complained that his clinic was racially discriminating against another physician.  The Clinic then terminated Dr. Roswick.  We took this case to trial and the jury awarded $1.2 million.  More information here.
  • We represented an employee, “Sam,” who complained to his employer about anti-Semitic slurs from his fellow co-workers. Even though Sam hadn’t been disciplined for anything in 5 years of employment, in the 2 months after his complaint, he was disciplined and written up 5 different times.  Then his employer terminated him for his write ups.  That’s called “papering the file” – Sam’s employer wanted to manufacture a reason to terminate him so it wrote him up a number of times after his complaint.  We beat the employer’s motion for summary judgment and settled this case for $130,000.
  • We represented a police officer against the City of Richfield. He had previously sued the City for age discrimination and won.  After he won, the City passed him over for promotion in favor of younger, less-qualified officers.  We represented the officer at trial in his age discrimination and retaliation suit against the City – we argued that the City retaliated against him for his successful age discrimination lawsuit by passing him over for promotion.  The jury awarded him $50,000 in actual damages and another $25,000 in punitive damages – the most allowed by the Minnesota Human Rights Act.

First of all, if you’re searching for answers right now, we’re very sorry that you’re in this position.  We know how tough it is to lose your job, especially when you’ve got family and other financial obligations.  It’s especially frustrating and hurtful when the termination is just because you stuck up and did the right thing.

Second, make sure that take advantage of state benefits designed to help people going through tough times.  Apply for unemployment benefits – here’s a link.  And, contact COBRA to make sure you and your family are covered for health insurance.

Third, write everything down that happened to you.  Write down the date that you were terminated, who terminated you, what they precisely said was the reason for your termination, and who else was present.  Write down whether you think the reason your employer gave you was accurate or not, and why.  Write down the names of employees that you think may have useful information.  Write down the types of documents or emails that you think may have good information about your case.  Write down everything – the reason for this is that your memory will probably fade over time and you want to document things while they’re fresh in your mind.  If you pursue a lawsuit, your trial likely won’t be for at least 12 to 18 months, so you want to have something that you can refer to – write everything down.

Fourth, immediately send a letter or email request to your employer requesting your personnel file and the reason for your termination.  Under Minnesota law, your employer needs to provide it to you.  If your employer hasn’t paid you all of your wages or given you your last paycheck, make sure to request those wages in writing also (by letter or email).

Fifth, call us for a free consultation to talk about your case.

You need to move quickly on these.  In Minnesota, you’ve got just one year from the date of the retaliation to bring a lawsuit or file a claim with the Minnesota Department of Human Rights.  You’ve only got 300 days from the date of the retaliation to file a claim with the Equal Employment Opportunity Commission, if you want to bring federal claims under Title VII, the Americans with Disabilities Act, or the Age Discrimination in Employment Act.

Contact Our Minneapolis and St. Paul Retaliation Attorneys for a Free Consultation.

All consultations are freeDuring your consultation, we’ll discuss the strengths and weaknesses of your case, the potential value of your case (e.g. how much your case is worth), and the best way to proceed.

There’s some information that we’ll need when you call, so if possible, please have it handy, including: who did you work for what did you do how long did you work there how much did you earn when were you terminated what was the reason given by your employer for your termination and why do you think the termination was unlawful or wrongful. If you have this information handy, it will allow us to proceed to the heart of your case very quickly and give you good legal advice.

The process for a free consultation with our employment lawyers is pretty simple. First, call our firm. You’ll talk to a clerk for about 5-10 minutes. They’ll get some basic information about you and your case.

About 3 or 4 hours later, you’ll get a call from us. If you’ve got a case that’s a little outside our wheelhouse, then we’ll will call you and give you a referral for an attorney that we think is better suited to handle your case. Our number one goal is to make sure you get the best representation possible for your particular matter – if that’s not us, we’ll tell you immediately and get you to someone else that we trust.

If we think that we can help you, then someone will call you and set an appointment for you to talk to one of our employment lawyers. We’ll call you at time that works for you and discuss your case and give you our honest assessment of its strengths, weaknesses, and value. We’ll then set a time where you can come to our office and meet your employment lawyer personally – at that time, we’ll discuss your case in more detail, sign a contingency fee retainer agreement, and talk about the process of moving forward with your case.

When you come in to meet your employment lawyer, please bring all relevant documents that you want us to look at, including: pay-stubs personnel file (if you have it) employment handbook (if you have it) any letters from your employer, including your termination letter any text messages or emails that you think are important and any other documents that you think might be helpful.

THE MADIA LAW WAY

We have a process that works in getting exceptional results for our clients. 

We are trial lawyers who prepare every case for trial from Day 1. Investigation and legal research are the first things we do, and we spend a lot of time on them. Because we haven’t filed the case yet, we have complete control – the defendant has no say and we want to use this time wisely.  We interview witnesses that can help us prove the case.  We’ll ask you for all relevant documents in your possession and review those carefully as well.  We also will spend some time conducting legal research about unique issues in the case.  We pull the jury instructions that the judge will ultimately charge the jury with after closing arguments at trial. 

Our next step is typically to send a demand letter to the defendant. In the letter, we thoroughly lay out: the facts surrounding the defendant’s misconduct; the applicable law (including statutory and case citations) that make clear that the defendant broke the law; an analysis of your damages and the defendant’s monetary exposure; a demand for a monetary amount to settle the claim; and an instruction to preserve all relevant evidence, including electronic evidence. The point of this letter is to give the defendant a chance to do the right thing and pay a fair amount before litigation, and to give the defendant an opportunity to present any defenses or evidence it wants us to consider before moving forward.  Sometimes we skip the demand letter if there are strategic reasons to move straight to filing, but we typically give defendants a chance to do the right thing.

If early negotiations fail, great – we file a Complaint and serve the defendant with it. A Complaint is a legal document that states the facts of what happened and alleges how the defendant broke the law. It formally starts the lawsuit.  Many lawyers draft complaints in a general and relatively vague way, just to get it done and filed – because that’s all that’s really required.  We take a different view. We view the Complaint as our first chance to tell your story to the judge, and we take it seriously. So we draft detailed complaints and include legal citations to statutory and judicial authority on unique points.  Sometimes we’ll include a number of exhibits, diagrams, or other demonstrative aids to help the Court understand our claims.  A secondary benefit of this approach is that defense lawyers reading the Complaint can become educated on the problems of their case and the state of the law – sometimes this leads them to reach out to us shortly after service of the Complaint to re-initiate settlement negotiations.  Of course, by that time, the price for settlement has gone up.

Some lawyers view written discovery as a necessary evil – something to get done and out of the way before depositions.  Not us.  Written discovery is a gift and an opportunity.  We spend a great deal of time crafting requests for documents and interrogatories (questions for the defendant to answer in writing) that are specific, detailed, and tailored to get what we need to prove our case.  Many lawyers – even great ones – think written discovery is a waste of time because defense lawyers typically answer them on behalf of their clients and can try to stonewall with legalese and objections.  We view this as a wonderful opportunity.  In our experience, most defense lawyers can’t help themselves when answering discovery: they over-state their defenses and make assertions that their clients will not be able to support in testimony. So we get to commit the defendant to defenses that they can’t back up, leading to contradictions, confusion, and chaos in their depositions later on.  We also use Requests for Admission – which many lawyers don’t.  The Federal Rules and Minnesota Rules of Civil Procedure allow us to ask defendants to “admit” certain facts.  We send them RFAs that are very difficult for them to deny.  Of course, they do it anyway, but that sets them up later for cost and fee-shifting, which the Rules mandate for defendants that deny RFAs that are later proven true.  And usually, we can get the defendants’ own witnesses to admit facts that their defense lawyers denied in RFA.  That’s a great situation that leads to more chaos and confusion on the defense side.

One last point on written discovery – we send multiple waves of it throughout discovery.  We typically send 3 or 4 sets of written discovery requests to defendants throughout discovery.  This compounds the problems for them, because the defense lawyers continue to overstate their defenses, but now run into contradictions from not just the defendant witnesses’ deposition testimony, but also their own previous discovery responses.  This makes for a great record that we can present to the judge at dispositive motions, and use for impeachment at trial.

This is our chance to question relevant witnesses, on the record with a court reporter (we typically videotape important depositions as well). We get to confront the defense witnesses with all of the evidence we’ve developed through written discovery and document production. By this time, the defendant put its witnesses in an impossible position through its written defenses, which are often untrue and indefensible.  So the witness has to either lie to support the defense, or admit it’s not true.  That’s a dilemma that works for our clients either way, no matter which option the witness takes.  We use depositions to expose contradictions, create a record for dispositive motions, lock witnesses into their stories so that we can impeach them later at trial, and sometimes, to show defense lawyers how hopeless their case is.  We often calls from defense counsel shortly after depositions of their clients, seeking to re-start settlement negotiations.

The defendant will usually make a motion for summary judgment after discovery, asking the Court to throw out the case without having a jury trial. Because we’ve hit discovery so hard – both through written discovery and depositions – this is a tough motion for defense counsel to write in our cases.  We draft our response for the Court and now get to bring everything together: the admissions, contradictions, nonsense, and obvious fact disputes that we’ve uncovered through discovery.  We tell a compelling story that wraps everything together for the Court and makes clear that the defense motion has to be denied, and the defendant needs to face a jury for its conduct.

Sometimes, we’ll even make an affirmative motion for summary judgment, asking the Court to grant judgment in favor of our client without a trial. These motions are generally rare for plaintiffs to make, because the defendant can usually point to some fact dispute on its intent or some other factor that necessitates a trial. But we make affirmative summary judgment motions significantly more than is typical for plaintiffs, and that’s because the work we put in during discovery helps build a fantastic record to do so.

After the Court denies the defense motion for summary judgment, the defendant has only 2 options: 1) do the right thing and pay you a fair amount to our client to settle your claim (usually much, much more at this point than the defendant could have paid at the beginning of the case to settle); or 2) face a jury for its conduct and risk an enormous verdict. This is the dilemma that we have been creating and forcing the defendant into for the entire case. We’ll engage in settlement negotiations at this point from a position of extreme strength, mainly because most defendants are (rightly) terrified of facing a jury to defend their conduct.

This is, candidly, our favorite part of the case – why we went to law school: to hold the powerful accountable before juries.  We prepare heavily for trial, including: detailed witness preparation, focus groups, and mock trials.  At this point, the potential outcomes and consequences for the defendant are much more severe than if it simply did the right thing at the beginning of the case and paid a fair amount to compensate our client for its misconduct.  As we advocate to the jury for our client, we’re also mindful of protecting the record so that defendants will be unsuccessful in attacking the verdict in post-trial motions or appeal.

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