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Potential Witness to Discrimination Complaint Not Entitled to Retaliation Protection

    Client Alerts
  • August 06, 2010

As reported in last week's EmployNews, this fall the U.S. Supreme Court will hear arguments in a case involving an employee who claims he was terminated after his fiancée, who worked for the same employer, made an internal sex discrimination complaint. Federal courts continue to struggle with the extent of protection afforded employees under Title VII's anti-retaliation provisions. Last month, the Eleventh Circuit Court of Appeals reviewed another sort of retaliation claim.

In Thampi v. Manatee County Comm'rs, the plaintiff alleged that he was terminated as a result of appearing on a list of potential corroborating witnesses provided by a co-worker who filed a bias complaint. The Eleventh Circuit affirmed dismissal of the claim on summary judgment, concluding that the plaintiff was not protected under Title VII. He never introduced evidence indicating the contents of his potential testimony, and in fact had tried to avoid being caught up in the investigation.

Merely being listed as a potential witness by a complaining party does not constitute opposition to discriminatory conduct as required under Title VII. In addition to the language of the statute, the court failed to find any factual connection between the complaint's witness listing and the subsequent plaintiff's termination.

Even if the Supreme Court holds in favor of the plaintiff in the fiancée case, this decision would likely not extend Title VII's anti-retaliation coverage to the plaintiff in Thampi. In order to be protected from retaliatory conduct, the plaintiff must be able to demonstrate some direct connection between himself and the complaining party that would motivate the employer to take adverse employment action.