do i have a case of retaliation?

I am assuming that the reports that you made to the HR department are documented and you have notes or other records that you engaged in the protected activity. Reporting illegal conduct by management, such as sexual harassment, would be a protected activity. The transfer and from your description bogus investigation should be documented from your side of the question in terms of the timing.

You really should see an employment attorney and can select one at www.oelasmart.com

This is the first step, and please remember that depending on the forum you choose different time periods apply.

posted by Bruce Elfvin  |  Aug 9, 2009 07:49 AM [EST]

On the face of your facts, you appear to have a claim for unlawful retaliation, unless you have not suffered a "tangible, adverse action."

A retaliation claim requires you to 1) engage in protected conduct, 2) suffer a tangible, adverse employment action and 3) prove a causal connection between the two.

Reporting the sexually harassing conduct of a manager, even for harassment of someone else, is protected conduct. It appears that your reports have led to your write up, but you have the burden of proving that. Let's assume for this answer that you will be able to carry your burden of proving a causal connection.

It is not clear whether a write up and probation are sufficiently "tangible" adverse actions, however. In general, the law requires the injury to victims to be more than slight before it will allow the victims to go to court to sue. Therefore, in retaliation cases, the adverse action has to be tangible. Generally, an action is tangible if it has an economic consequence or otherwise is of a nature that it would chill the reasonable employee from engaging in the protected conduct.

In your case, if you have not suffered a suspension or decrease in pay, your adverse action may not be sufficiently tangible to go to court. You are, however, very close to that point.

The best outcome for you would be not to suffer anything more tangible than a write up and probation. To recommend a course of action that will protect your employment or place you in the best position to recover a remedy if you do lose your job, you should consult with an experienced employment lawyer. We accept telephone consultations if travel is a problem. Call my office if you would like to schedule a consultation. Our fee is $200.

Best regards,

Neil Klingshirn.

posted by Neil Klingshirn  |  Aug 8, 2009 09:30 AM [EST]