A Former Employer’s True Statements About Pending Lawsuit Could Give Rise to Retaliation Claim

Lev Craig

On September 26, 2017, the U.S. District Court for the District of Connecticut denied defendants’ motion to dismiss in Shakerdge v. Tradition Financial Services, Inc., allowing Jo Layla Shakerdge to move forward with her claims that her previous employer, Tradition Financial Services (TFS), retaliated against her for filing a complaint about discrimination at TFS by sabotaging her subsequent job search.

Shakerdge was employed as an energy commodities broker at TFS, a brokerage firm, where she alleges that she was subjected to sexist and racist comments and sexual harassment. Shakerdge describes a workplace that “objectified and degraded women”: her male coworkers allegedly openly viewed pornography on their computer screens, made offensive comments about TFS clients and employees, including Shakerdge herself, and subjected Shakerdge to physical sexual harassment, including an incident where TFS’s CEO attempted to whip Shakerdge with a riding crop Shakerdge had brought to the office to use for horseback riding. After her termination in June 2015, Shakerdge filed a complaint with the Connecticut Commission on Human Rights and Opportunities (CHRO), bringing hostile work environment, wrongful termination, and retaliation claims.

In January 2016, Shakerdge began the interview process for an open energy commodities broker position at another brokerage firm, BGC Financial, L.P. (BGC). In April 2016, BGC offered her the position, sent her an employment agreement and onboarding paperwork, granted her computer access and a company email address, and registered her as a broker with a government agency, according to Shakerdge. But after Shakerdge worked her first full day at BGC on April 12, 2016, a BGC HR employee sent her a text message that evening, telling her not to come back to the company. The following day, BGC emailed her “to confirm that BGC is no longer pursuing your candidacy at this time.”

After her termination, Shakerdge spoke with another broker at BGC, who told her that—based on conversations he had overheard amongst BGC’s HR executives—he believed that BGC had withdrawn her job offer because of her legal dispute with TFS. Shakerdge subsequently amended her complaint to add retaliation claims, alleging that TFS had interfered with her job search and new position with BGC. TFS moved to dismiss, contending that Shakerdge had not alleged facts showing that TFS had done anything to affect her employment at BGC or that the company had retaliated against her for filing the CHRO complaint.

The court denied TFS’s motion, basing its decision largely on the “minimal evidence” standard applied to Title VII retaliation cases in the Second Circuit, under which plaintiffs must show “(1) participation in a protected activity; (2) that the defendant knew of the protected activity; (3) an adverse employment action; and (4) a causal connection between the protected activity and the adverse employment action” and may demonstrate plausibility by showing “some minimal evidence suggesting an inference that the employer acted with discriminatory motivation.”

Here, the court found that Shakerdge’s CHRO complaint constituted protected activity, and TFS offered nothing to show that it was unaware of Shakerdge’s complaint, satisfying the first and second conditions. The court was unpersuaded by TFS’s argument concerning the third prong—that Shakerdge had failed to allege that TFS had taken any adverse employment action against her for filing her CHRO complaint. The court noted several post-employment actions which courts have recognized as retaliatory, including providing a negative reference, refusing to provide a reference, or blacklisting a former employee by sullying their reputation within their industry.

Finally, the court found that Shakerdge’s allegations were specific enough to sustain a plausible claim: Shakerdge “alleged that BGC essentially hired her, registered her with a regulatory body, and then ‘rescinded’ their offer because of her CHRO complaint” and that TFS encouraged BGC to terminate her and attempted to blacklist her with several employers in her field. In support of this conclusion, the court relied on a recent Second Circuit case with similar facts, Irrera v. Humpherys. There, the plaintiff was sexually harassed by his teacher, the chair of the Eastman School of Music’s piano department, who threatened to make Irrera’s life a “living hell” if he complained. Irrera reported the teacher’s sexual advances anyway; when he later applied for open teaching positions at 28 different schools, he did not receive a single interview offer, even though he was highly qualified. While Irrera made “no allegation that he [was] aware of a negative reference sent to any particular school,” the Second Circuit found that the “improbable series of events” and the plausibility of Eastman’s piano department having provided negative references for Irrera was enough to allow his claims to proceed.

Applying the same logic here, the District of Connecticut found that, while it was possible that BGC had “acted independently of any action on the part of TFS,” it was “certainly […] plausible that BGC contacted Shakerdge’s former employer, and that TFS therefore had some role in the subsequent dismissal.” Accordingly, drawing all reasonable inferences in Shakerdge’s favor, the court allowed her retaliation claims to move forward.

If your employer has retaliated against you because you complained about discrimination, including filing a charge of discrimination with a government agency or commencing a lawsuit, contact The Harman Firm, LLP.