Houston Retaliation Lawyer

Handling Whistleblower Cases for Clients in Texas

The Clifford Law Firm is committed to helping employees who have lost their jobs due to unlawful retaliation.

Victims of retaliation are eligible to recover a variety of damages, including:

Lost wages, both past and future,
Lost benefits,
Damages for mental anguish, and/or
Punitive damages.

Anatomy of a Retaliation Claim

Your retaliation claim consists of three basic questions: 1) did you engage in a protected activity, 2) did your employer take an adverse employment action against you, and 3) how can your Houston whistleblower lawyer prove your case?

Did You Engage in Protected Activity?

There are two types of protected activity: 1) whistleblower activities and 2) participation activities. You are protected from retaliation if you engage in either type of activity. Be sure to get in touch with a Houston employment lawyer for legal support for your whistleblower case.

Whistleblower activities include the reporting of:

Discrimination or harassment
Unsafe working conditions (potential violations of OSHA or the Texas Health and Safety Code),
Corporate fraud (potential violations of Dodd-Frank or Sarbanes-Oxley), and
Unpaid overtime (potential violation of the Fair Labor Standards Act).

The refusal to act may also be considered a protected opposition activity:

Refusal to commit a criminal act,
Refusal to follow an order that might result in discrimination, and
Resistance to, or rejection of, sexual advances from a supervisor.

In most whistleblower / opposition cases, the employee is protected from retaliation if the employee reasonably believed that an illegal practice occurred—even if it turns out that the employee was mistaken or incorrect.

Simply sharing information with your employer about an illegal employment practice is generally considered protected activity, even if you aren’t technically “complaining” about the practice.

Participation activities include:

Filing a complaint with the EEOC or DOL,
Filing an employment lawsuit, and
Participating as a witness during an investigation or legal proceeding.

Did Your Employer Take an Adverse Employment Action Against You?

Wrongful termination is the most commonly-recognized type of adverse employment action. Other forms of adverse employment actions include demotion, suspension, reduction in pay, and the assignment of demeaning work. Petty annoyances (e.g., your boss doesn’t smile at you) typically aren’t actionable.

How Can You Prove Your Retaliation Case?

Houston employment law attorney Dennis Clifford use various discovery techniques to gather the evidence necessary to prove your case. Discovery options include: 1) written requests to your employer to produce documents and electronic data, including emails; 2) written questions to your employer, which must be answered under oath; and 3) depositions (lengthy question-and-answer sessions).

There are two types of evidence in employment cases: 1) direct evidence, and 2) circumstantial evidence. Either type of evidence can be used to prove your case.

Direct evidence is powerful and compelling because it directly links the adverse employment action (e.g., the termination) to the prior protected activity. Examples of direct evidence include:

The plaintiff testifies, “my manager told me that I’m being terminated because I reported him for sexual harassment.”
A manager’s email reveals: “We need to get rid of Jane. She keeps complaining the company pays women less than men for the same work.”
An HR representative testifies, “our operations manager told me to come up with a reason to fire John because he filed a workers’ compensation claim.”

In each of these examples, the evidence directly establishes that the termination decision was based on the prior protected conduct.

Circumstantial evidence typically requires an inferential step. For example, if you go outside and you see the grass is wet and beads of water are on your car, then it’s probably safe to assume it rained. Even if you didn’t actually see the rain falling from the sky, you can infer, from the circumstantial evidence, it probably rained sometime recently.

Common examples of circumstantial evidence in retaliation cases include:

Suspicious timing: How much time has elapsed between your protected activity and your employer’s decision to terminate you? If your employer suddenly decides to terminate you shortly after you engage in protected activity, that timing can serve as strong circumstantial evidence of retaliation.
Negative comments: Did your manager say anything negative to you shortly after you engaged in a protected activity? If so, those comments help prove your manager was irritated with you for engaging in the protected activity. This type of evidence brings you one step closer to proving retaliation.
Policy language: Were you allegedly terminated for violating a workplace policy? If your employer has misapplied the policy, that may serve as convincing evidence of retaliation.
Failure to follow progressive disciplinary policy: Does your employer have a progressive disciplinary policy? The failure to follow the steps outlined in a progressive disciplinary policy can serve as evidence of retaliation.
Inconsistent treatment: How did your employer treat other employees who committed the same offense that you allegedly committed? For example, if you were terminated for being late to work, were other employees who were also late to work only given a written warning? If so, that is circumstantial evidence that you were treated more harshly than the others because you (unlike the other employees) recently engaged in a protected activity.
Different or shifting explanations: Did your employer tell you that you were being terminated for one reason, but your termination paperwork states a different reason? These different or shifting explanations may suggest that your employer is being less than honest with you about the real reason for the termination. In such cases, we can infer that retaliation is the real reason for the termination.
Incomplete investigation: If your employer terminated you for committing a workplace violation, did your employer properly investigate the matter? An incomplete investigation may suggest that your employer was more interested in terminating you than trying to figure out whether you actually did anything wrong.