Friday, August 12, 2011

Retaliation claims are not the same as discrimination claims.

As reported back in May, a federal jury found for the plaintiff/employee on a wrongful termination claim against the Madison Area Technical College. Dr. MichaelDubin, a history professor at the college, claimed that he suffered religious discrimination based on religion as well as retaliation for opposing unlawful discrimination.

As the Courthouse News notes, Dr. Dubin, who is Jewish, was apparently called --among other things--a "litigious Jew" by his supervisor. However, the jury verdict was solely on the retaliation claim as the religious discrimination claim was dismissed on summary judgment. This should not lead the reader to conclude that it is okay to call people litigious Jews. It is not.

As the summary judgment order makes clear, the religious discrimination claim failed because Dr. Dubin's religion was not known to the people who made the decision to terminate him. Since they didn't know his religion, the folks who terminated him couldn't have decided to terminate him because of his religion. They did however, know that he had complained about discriminatory comments.

They jury, apparently persuaded by the fact that Dr. Dubin was the only professor to complain about discriminatory comments and also the only professor (out of 18) on a probationary period who was not hired at the end of the probation period, found for the doctor on his retaliation claim.

In addition to seeking back pay and emotional distress damages, Dr. Dubin also sought reinstatement at the college. As a reinstatement is an equitable remedy, the court gets to decide whether to grant reinstatement. Judge William Conley decided to grant reinstatement this week. He also affirmed the award of lost wages (plus prejudgment interest) and lowered the emotional distress damages award to reflect the fact that emotional distress damages on federal religious discrimination claims are capped at $300,000. In other words, Dr. Dubin won just about everything he could have expected to win at trial.

What should one take away from this case? First, terminating employees shortly after they make discrimintion complaints is a bad idea. Second, just because a discrimination claim is found to lack merit, does not necessarily mean that a retaliation claim will also lack merit. As this case makes clear retaliation claims are seperate and distinct from discrimination claims and can lead to a completely different result.

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