Retaliation in DC

What is Employment Retaliation?

“The DCHRA prohibits an employer from retaliating against an employee because the employee has exercised a right granted or protected by the DCHRA.” (See Grimes v. Dist. of Columbia, Bus. Decisions Info. Inc. (2014) 89 A.3d 107, 112; D.C.Code § 2–1402.61(a) (2012 Repl.).)

“Further, the DCHRA makes it unlawful for an employer to retaliate against an employee for opposing an employment practice that is prohibited by the Act[,] such as discrimination.” (See Vanessa Sampay v. Am. Univ. (2023) 294 A.3d 106, 113; Vogel v. D.C. Off. of Plan. (2008) 944 A.2d 456, 463.)

Prima Facie Case for Retaliation

“To establish a prima facie case of retaliation, the plaintiff must demonstrate by a preponderance of the evidence that:

1. [she] was engaged in a protected activity;
2. the employer took an adverse action against [her]; and
3. a causal connection existed between [her] opposition or protected activity and the adverse action taken against [her].”

(See Vanessa Sampay v. Am. Univ. (2023) 294 A.3d 106, 114; Propp v. Counterpart Int'l (2012) 39 A.3d 856, 863.)

Burden of Proof and Standard of Review for Retaliation

“In cases where the plaintiff rel[ies] on circumstantial evidence, rather than direct evidence linking the personnel action to a forbidden motive, we evaluate [the plaintiff's claim] utilizing the tripartite burden-shifting framework set forth in McDonnell Douglas Corp. v. Green , 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).” (See Vanessa Sampay v. Am. Univ. (2023) 294 A.3d 106, 114; Furline v. Morrison (2008) 953 A.2d 344.)

“Under the McDonnell Douglas burden-shifting framework, a plaintiff bears the initial burden of producing evidence to sustain a prima facie case. If the plaintiff satisfies this burden, the employer must then produce evidence of a legitimate, nondiscriminatory or nonretaliatory reason for its action.” (See id.)

“If the employer offers a legitimate, nondiscriminatory or nonretaliatory reason, the burden then shifts back to the plaintiff to present evidence that the employer's proffered reason is pretextual.” “The ultimate burden of persuasion rests with the plaintiff to show that the defendant acted with impermissible motive or intent.” (See id; Propp v. Counterpart Int'l (2012) 39 A.3d 856.)

Wrongful Discharge of Employee in Violation of Public Policy

“It seems to be universally accepted that an employer's discharge of an employee for the employee's refusal to violate a statute is a wrongful discharge in violation of public policy.”(See Adams v. George W. Cochran Co., Inc. (1991) 597 A.2d 28, 32; see,e.g., Wagenseller v. Scottsdale Memorial Hospital (1985) 147 Ariz. 370, 710 P.2d 1025; Girgenti v. Cali-Con, Inc. (1988) 15 Conn. App. 130, 544 A.2d 655; Phipps v. Clark Oil Refining Corp., (1987) 408 N.W.2d 569; Sabine Pilot Service, Inc. v. Hauck (1985) 687 S.W.2d 733.)

“Most courts that have addressed the issue have concluded that an action for wrongful discharge in violation of public policy is an action in tort, rather than in contract.” (See id.)

“Liability is grounded in the principle that the employer may not retaliate against an employee by discharging that employee for refusing to break the law. The employer engages in tortious conduct by affirmatively forcing the employee to choose between breaking the law and keeping his job. The wrongful discharge of an at-will employee in violation of public policy is thus an intentional tort.” (See id; W. PROSSER W. KEETON, THE LAW OF TORTS § 130, at 1027-1028 (5th ed. 1984); Winters v. Houston Chronicle Publishing Co. (1990) 795 S.W.2d 723, 724.)

Legal Precedents and Case Law on Retaliation

It is well settled that “not every complaint by an employee is encompassed by the DCHRA.” (See Powell v. Am. Red Cross (2007) 518 F. Supp. 2d 24, 36; Vanessa Sampay v. Am. Univ. (2023) 294 A.3d 106, 114.)

It is also well settled that “once [a] plaintiff has presented a prima facie case of retaliation, the burden shifts to [the employer] to show a legitimate, non-retaliatory reason for the contested action. At this stage, the employer need only make a proffer; the persuasiveness of the evidence is not considered until the court needs to determine whether that reason was pretextual.” (See Vanessa Sampay v. Am. Univ. (2023) 294 A.3d 106, 117-18; Johnson v. District of Columbia (2020) 225 A.3d 1269, 1281-82.)