Recently in Retaliation Category

October 27, 2014

Retaliation Lawsuit by Railroad Worker Dismissed by 8th Circuit

The Eighth Circuit decided an employment discrimination case earlier this month brought by an employee of a railroad carrier. Apparently, the plaintiff in this case had a significant history of good work performance, but at some point he violated a serious safety rule. He agreed to a 30-day suspension and a period of probation. At some point during his probation, the plaintiff was viewed walking in the tracks, which is another serious safety violation.

fall-railroad-1433372-2-m.jpgThe supervisors who witnessed the above violation began an investigation. A hearing was held, and it was decided that the plaintiff would be terminated from his position. The plaintiff believes that his termination was based on the fact that he made two previous complaints and not because of the alleged rule violation. The lower court ruled in favor of the employer, and the Eighth Circuit agreed, finding that there was no unlawful retaliation and the plaintiff would have been discharged even without the rule violation.

What is Retaliation?

The Equal Employment Opportunity Commission (EEOC) explains that employers cannot harass, terminate, or demote an employee or retaliate against him or her for filing a claim for discrimination, participating in a discrimination proceeding, or other similar activities. Generally, a retaliation suit is brought when an employer participates in an adverse action against a qualified employee because he or she engaged in a constitutionally protected activity.

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March 26, 2014

Sixth Circuit Affirms and Reverses Lower Court Ruling on Title VII Claim in Laster v. City of Kalamazoo

Recently, the Sixth Circuit Court of Appeals affirmed a federal district court's ruling dismissing an Ohio safety officer's claims that he was forced to resign from the Kalamazoo Department of Public Safety in 2010 due to racial discrimination.

ready-to-roll-542939-m.jpgIn Laster v. City of Kalamazoo, Mark Laster, an African American man, had worked for the Kalamazoo Department of Public Safety for more than 23 years. During his employment, he claimed that he was treated less favorably than other employees in similar situations. For example, Laster believed that he was subjected to greater scrutiny, that policies were selectively enforced against him, and that his employer stood back and permitted individual employees to discriminate against or harass Laster. Laster believed that at least part of his treatment was due to his race. After reporting many instances of harassment to his employers, he eventually filed a claim with the Equal Employment Opportunity Commission, then Title VII discrimination and retaliation claims against his former employer.

The district court found in favor of the City of Kalamazoo and Laster appealed. The Sixth Circuit applied strict scrutiny to the circumstances of his case, which is required for racial discrimination cases involving government bodies. For a government body to pass strict scrutiny, it must be shown that it had a compelling government interest, that the law or policy was narrowly tailored to achieve that interest, and that the law or policy was the least restrictive means for achieving that interest. Strict scrutiny is used for race, national origin, or alienage situations, compared to intermediate scrutiny for gender and rational basis (the lowest scrutiny) for nearly everything else.

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February 14, 2014

Sixth Circuit Finds Involuntary Transfer to Be an Adverse Employment Action in Deleon v. Kalamazoo County Road Commission

Not long ago, the Sixth Circuit Court of Appeals determined in Deleon v. Kalamazoo County Road Commission that a job transfer could be considered an adverse employment action, even if it was to a position that the employee initially wanted.

industrial-park-1372192-m.jpgThe case involved a 53-year old man of Mexican descent, Robert Deleon, who had worked for the Kalamazoo County Road Commission for 28 years. In 1995, Deleon served as an Area Superintendent who supervised road maintenance activities, road crews, and road repairs. Although he received positive reviews for his work, Deleon also claimed to have experienced a pervasive atmosphere of racial insensitivity and hostility.

In 2008, a vacancy opened up for the Equipment and Facilities Superintendent position. The description stated that the work took place primarily in an office and in a garage where there would be exposure to loud noises and diesel fumes. Deleon applied for the position, viewing it as a good opportunity to advance in his career. Had he been offered the position, Deleon claimed that he would have requested a $10,000 increase in salary.

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October 2, 2013

Sixth Circuit Finds That Employer Who Terminated Employee Due to Her Romantic Relationship Is Not Liable in Stevens v. Saint Elizabeth Medical Center, Inc.

In the recent case Stevens v. Saint Elizabeth Medical Center, Inc., the Sixth Circuit Court of Appeals ruled that terminating an employee after discovering a consensual, but inappropriate, workplace relationship that has soured is not grounds for wrongful termination or hostile work environment.

gavel-4-1409594-m.jpgThe case involved a nurse, Caroline Stevens, who worked for Physician Associates, LLC and Patient First Physicians Group, the latter of which was later acquired by Saint Elizabeth Medical Center. Stevens served as a nurse and personal assistant for Dr. Donald Saelinger, the Chief Executive Officer for Patient First Physicians Group. During many of the years they worked together, Stevens and Saelinger had a romantic relationship, until Stevens broke it off in 2009 when she learned that Saelinger had not divorced his wife.

Stevens later filed a complaint that her site supervisor, Gary Brown, was pressuring her to take a new position after Saelinger expressed a desire to reduce his patient load. She noted that no patients had been transferred to other doctors. Brown was aware that Stevens and Saelinger used to be in a relationship. Investigation into the complaint revealed that Stevens and Saelinger not only had an affair, but that they also had several sexual episodes on office grounds. As a result, their employer gave them both the option of resigning or being terminated. Saelinger resigned, while Stevens was terminated. Stevens then filed a lawsuit against Saelinger, Physician Associates, Patient First Physicians Group, and Saint Elizabeth Medical Center, alleging sexual harassment under Title VII, the Kentucky Civil Rights Act, wrongful termination (retaliation) and fraud. The defendants filed a motion for summary judgment and the district court ruled in their favor. Stevens then appealed to a three-judge panel on the Sixth Circuit to review the case.

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September 23, 2013

Seventh Circuit Court of Appeals Rules That Employee Terminated For Mediation Misconduct Did Not Face Retaliation in Benes v. AB Data, LTD

Under Title VII of the federal Civil Rights Act of 1964, discrimination against employees on the basis of race, gender, national origin, religion, age, or disability is prohibited. That includes not just discrimination in hiring, firing, or every day workplace activities, but also retaliatory acts against employees who report workplace discrimination. Retaliation can include demoting the individual or terminating his or her employment. The question is what constitutes retaliation. Not long ago, the Seventh Circuit Court of Appeals determined that one case of firing did not meet that threshold.

handshake-671413-m.jpgIn Benes v. AB Data, LTD, the employee, Michael Benes, had filed a claim with the Equal Employment Opportunity Commission (EEOC) stating that the AB Data firm committed gender discrimination. The claim reached the mediation phase, where Benes first had a session with his employer before the two parties separated and used a go-between to relay each other's offer. After learning of the employer's offer, Benes went into the room where the employer's representatives were gathered and exclaimed that they could "shove" their proposal and fire him, and he would take them to court. The employer responded by terminating Benes's employment. Benes then filed a lawsuit under Title VII, claiming retaliation rather than gender discrimination.

A magistrate judge ruled in favor of AB Data on a motion for summary judgment, stating that Benes had been fired due to misconduct during the mediation rather than for retaliation. Retaliation is only prohibited in cases where "[a person] has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter."

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May 22, 2013

Even Teenage Seasonal Employees Can Experience Kentucky Employment Discrimination

As schools are letting out for the summer, some high school and college students will turn their attention to earning some cash during their break. Being new to the workplace, many students are unaware of the laws in place to protect them and others from workplace discrimination and sexual harassment. These laws protect workers who are employed by companies of a certain size, regardless of whether the job is full-time, part-time, or seasonal. The Equal Employment Opportunity Commission (EEOC) gives the following advice to young workers:

Don't Discriminate: You should not treat your co-workers unfairly or harass them because of their race, skin color, national origin, sex (including pregnancy) religion, disability, age (age 40 or older) or genetic information. For example, you should not tell sexual or racial jokes at work or tease people because they are different from you.

Report Discrimination: You should tell your company about any unfair treatment or harassment. Find out if your company has a policy on discrimination that specifies who you should contact about these issues.

Request Workplace Changes: You have a responsibility to tell your company if you need a workplace change because of your religious beliefs or disability. Your request does not have to be in writing, but you must provide enough information so your company can determine how to help you.


In a case settled in 2012, an 18-year-old female said she was subjected to sexual harassment by a male cashier while working at a Dairy Queen. During the six months that she worked there, the harassment didn't stop, even after she told her manager. She called the police, who came to investigate while she was working. The manager then fired her while the police were there. She filed a claim with the EEOC, and a complaint was filed alleging sexual harassment and retaliation. The parties settled the case, with the company agreeing to pay $17,500, to provide sexual harassment training to its managers and supervisors, to post a notice about the lawsuit, and to report any additional complaints to the EEOC.

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February 12, 2013

What Constitutes Sexual Harassment?

Everyone knows that sexual harassment is wrong and that it can lead to serious consequences if it occurs in the workplace. Some types of sexual harassment are very obvious, forcing oneself on another person, firing someone for refusing to have a sexual relationship, making continuous lewd comments or sexual requests. But some aspects of sexual harassment are a little less clear.

Touching someone else while at work can also be obvious sexual harassment, depending on where on the body the person is touched. As children, we are taught that places covered by our swimsuits should not be touched by others because they are private. This rule also applies to the workplace. But touching in other places can be considered sexual in nature as well.

Take for example the recent case in Oregon where a police captain touched several women on the upper leg. His chief stated the touching was not sexual in nature because the offender did not mean it to be, but several others begged to differ. A slap on the leg from one guy to another probably would not be considered sexual, but that is not what happened here. The captain touched several female subordinates on the upper thigh, and those who were touched said he either rubbed their leg or allowed his hand to linger.

First, it is not up to the person who is doing the touching to determine whether it was sexual or not. The person being touched is the one who determines if it made them feel uncomfortable or threatened. Second, because the person doing the touching was their supervising officer, the women probably felt more intimidated and unwilling to say anything about the behavior. Third, the upper thigh is a questionable area, unlike a shoulder or arm.

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January 14, 2013

Can an Employer Discriminate Against You for Your Own Good?

Employers who face employment discrimination charges often come across as villainous and uncaring. But sometimes, employers that may have actually been trying to look out for an employee end up discriminating against them. According to the Equal Employment Opportunity Commission (EEOC), this still does not make the discrimination acceptable. The following three scenarios all resulted in workplace discrimination actions being filed against the employers, two under the Americans with Disabilities Act and one under the Pregnancy Discrimination Act.

The Pregnancy Discrimination Act was enacted in 1978, and was added to Title VII of the Civil Rights Act of 1964 under the section regarding sexual discrimination. This new section made it illegal to discriminate against women who were pregnant or had medical problems related to pregnancy or childbirth. On November 13, 2012, the EEOC issued a press release stating it had filed a lawsuit under this portion of the act on behalf of a pregnant woman who had been terminated. The hotel franchise owner said she was terminated because her job as a housekeeper required that she be around cleaning products, which was unsafe for her baby. Whether this was truly the reason, or if they terminated her in anticipation of her missing work once the baby was born, is irrelevant. A woman cannot be fired because she is pregnant.

The Americans with Disabilities Act was passed in 1990 to protect those with disabilities from being discriminated against in employment, housing, and public services. Title I of the act covers workplace disability discrimination. A case filed by the EEOC on December 4, 2012, involves an employee who had a prosthetic leg. She was assigned to a temporary job by a placement agency in Illinois. Her job was to inspect or package electronics for shipping. While she was working on her second day, she was told that she was being removed from the position because the employer was afraid someone would bump into her. The placement agency promised to find her something else where she could sit down and work. She was never contacted about another job, so she filed a complaint with the EEOC. After trying to negotiate a settlement, the EEOC filed a lawsuit against both the placement agency and the electronics company. In the press release, the EEOC states, "Firing employees because of baseless fears and stereotypes about their disabilities is illegal, and the EEOC will defend the victims of such unlawful conduct."

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December 6, 2012

Supreme Court to Rule on Case Regarding Definition of "Supervisor"

On November 26, 2012 the Supreme Court heard the case of Vance v Ball State, an Indiana workplace discrimination lawsuit. Their ruling on the case will likely affect not only plaintiff and defendants in the case, but also other current and future workplace harassment lawsuits.

Here is a little background on the case. Ms. Vance started at Ball State University in Indiana in the banquet and catering department in 1989. During her numerous years of employment, she was usually the only African-American employee. One of her supervisors did not seem to care for her. She allegedly threatened her physically, and at one point the plaintiff heard that the supervisor referred to her in a derogatory manner because of her race. She reported the behavior, but the only outcome was both women were required to undergo counseling. The worker contacted the Equal Employment Opportunity Commission (EEOC) and filed a discrimination and retaliation lawsuit against the university. The lower court that heard the case threw it out because they did not think the alleged harasser was an actual supervisor of the plaintiff. She then appealed to the U.S. Supreme Court.

So the matter before the Supreme Court is deciding what constitutes a "supervisor." The federal appeals courts seem divided on the issue, with some using a broader definition than others. The court that heard the case above took a very narrow approach to the meaning of the word. They ruled that because the alleged harasser did not have the power to hire or fire employees, she was not a supervisor. The EEOC and some other federal courts define a supervisor as someone who "has the authority to recommend tangible employment decisions affecting the employee or if the individual has the authority to direct the employee's daily work activities." The plaintiff in this case felt the harasser was her supervisor because she was not required to fill out time sheets like the rest of the employees.

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November 29, 2012

New Whistleblower Legislation Instituted by Federal Government Good for Kentucky Employees

A whistleblower, in very simple terms, is someone who realizes something may be not quite right and decides to tell someone else about it. While kids who perform this same type of service are often called tattle-tales, adults should not be chastised or punished for doing the same. If an employer appears to be operating in a way that breaks a federal law, an employee should feel comfortable telling the appropriate people about it so the situation can be investigated, and remedied if necessary.

Most workers employed by the government and in the private sector are protected by whistleblower laws. Employees are covered by a provision of the Civil Service Reform Act of 1978 and the Whistleblower Protection Act of 1989(WPA). Under these acts, an employee who believes something they witnessed was in violation of a federal law, was fraudulent, was wasteful of money or resources, or might cause harm to the general public has the right to report it to the person or group of their choice without fear of retaliation. If an employee has reported some type of federal misconduct and has been retaliated against, he can take legal action under WPA and seek restitution such as repayment of lost wages if he was wrongfully terminated and other compensatory damages. This law also states that federal officials who have retaliated against a whistleblower may be subject to suspension or dismissal.

Most privately employed workers are also protected if they report a situation that they think breaks a federal law. The United States Department of Labor (DOL) handles whistleblower claims brought by workers in the private sector. If the whistleblowers do not think the DOL has administered their case in a timely manner, the law allows them to then file a lawsuit and have a trial by jury.

On November 27, 2012, President Obama signed new legislation providing additional protection for federal employees. Called the Whistleblower Enhancement Act, it is meant to further encourage those already covered by WPA to continue reporting governmental abuse of power and funds and it also offers protection to some groups who were exempt under the previous acts. This new act changes the burden of proof, making it easier for a whistleblower to prove their case. The Office of Special Counsel, which handles whistleblower cases, will no longer be responsible for paying defendants' attorneys' fees if they lose the case. All airport baggage screeners are now covered by whistleblower laws as are those who work in intelligence for the government. Scientists working for the government who report alleged censorship of their work are also now protected.

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November 12, 2012

Electronic Workplace Harassment Does Not Always Happen at the Workplace

Online social media and mobile communication are very prevalent in today's society and are being used in all sorts of ways. They can be used to invite friends to a party, notify faraway relatives that a new baby has arrived, find long-lost friends from high school, and share decorating ideas and silly videos with people around the globe. Even charity efforts have gone mobile as phone apps have been created as a convenient way for people to help donate to those who were affected by Hurricane Sandy. Unfortunately, it can also be used in negative ways as well, such as harassment.

Supervisors and co-workers often find each other on social networks or share cell phone numbers to allow for easier communication. Sometimes it is easier to send a text regarding a work matter than it is to have an actual phone conversation. But these technologies can also be used in an abusive manner and result in workplace harassment or sexual harassment even when an employee is not at work.

There are many different ways a worker can be harassed electronically. If a supervisor repeatedly sends texts messages to an employee asking for a date or an intimate relationship, the employee may feel uncomfortable or threatened. This constitutes sexual harassment and can create a hostile work environment. Sexual harassment can also occur when a supervisor or co-worker emails or posts pictures or jokes of a sexual nature that other employees find offensive. In a recent case, the Equal Employment Opportunity Commission (EEOC) filed a lawsuit against a company because a manager was sending sexual texts to an employee, who told her supervisor. When the supervisor reported the harassment, the company allegedly retaliated against him by firing him. A settlement for $2.3 million was made by the company for both the sexual harassment and retaliation claims.

Other types of harassment or workplace discrimination can also occur. If supervisors or co-workers are posting disparaging remarks regarding an employee's disability, race, ethnicity, gender, or religion, this may also be discrimination. An employee was recently awarded $1.6 million by a court because co-workers had posted negative comments about his disability and his employer did not take any action when he reported the discrimination.

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August 2, 2012

Alleged Kentucky Sexual Harassment Incident Included in Police Officer's Lawsuit

An ex-employee of the Hyattsville Police Department in Maryland has filed a sexual harassment lawsuit against the city of Hyattsville. She joined the force in 2005 when she was 21 and stayed until she was allegedly forced to retire in 2009.

According to the lawsuit, the female police officer was frequently the victim of sexual harassment from her supervisors and coworkers while on the job. Perhaps the worst incident allegedly occurred in 2007 in Louisville, Kentucky. The officer was invited by her superior officer to attend a Fraternal Order of Police Conference there. During the conference, the suit claims that the superior officer took her into a men's restroom and forced her to touch his crotch. Then later that night he allegedly came into her hotel room, climbed on top of her and tried to have sex with her. The female officer's roommate allegedly helped to get him off of her. The female officer claims that nothing was done when she reported the incident and that she was even assigned to the offending officer's squad after it happened. The city of Hyattsville disagrees with her claim, stating disciplinary action was taken against the superior officer, but they did not provide any details.

The female officer said the repeated sexual harassment and hostile work environment forced her to go on short-term disability because she suffered from post-traumatic stress syndrome. The suit also claims that she was retaliated against after reporting the harassment and she was eventually forced to retire and relocate in 2009.

Her lawsuit seeks an unknown amount of damages. The damages would cover her lost wages and benefits as a result of supposedly being forced to retire early. They would also compensate her for any mental or emotional distress incurred because of the harassment and retaliation. If a jury would rule in her favor, the police department would likely have to provide training to all personnel regarding avoiding sexual harassment in the workplace, and how to handle sexual harassment complaints when they occur. The Equal Employment Opportunity Commission's (EEOC) goal is not only to obtain justice for those who have been mistreated, but also to prevent that type of behavior in the future, so training and supervision from an outside party is frequently part of the award or settlement in this type of case.

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July 23, 2012

Alleged Workplace Discrimination at Bass Pro Shop in Indiana

43211_fishing_pole.jpgBass Pro Shop is known for providing equipment of all types to those who love the outdoors. Their stores are filled with camping, hunting, and fishing gear, and often have indoor fish ponds and activities to keep children occupied while their parents shop. According to the Equal Employment Opportunity Commission (EEOC), one thing you may not find there is a large number of minority employees.

In a lawsuit initially filed in 2011, the EEOC alleges that Bass Pro Shops in several states, including Indiana, practice racial discrimination. Minorities had been denied retail positions in the stores since at least 2005, the lawsuit claimed. In May 2012, the federal court ruled against the EEOC, stating there was not enough evidence provided in the initial case to prove discrimination occurred. The case was dismissed without prejudice, which meant the EEOC could file an amended complaint.

Which is exactly what the EEOC has done. On July 20, 2012, an amended complaint was filed against the retailer with 247 pages of information that was allegedly gathered over a two-year period. The suit states that the discrimination starts all the way at the top with the founder and owner of the entire chain, who supposedly said, "This company will never have a [racial] quota system because that's not the kind of people I want working in my stores." Specifically in Indiana, the lawsuit says a manager of the Bass Pro Shop there was throwing away certain employment applications because the names of the applicants sounded like they were minorities and that they "don't make good employees." The lawsuit also states that retaliation occurred against Bass Pro Shop employees that spoke out about or tried to stop the discrimination.

The company has responded to the lawsuit by stating the EEOC is stereotyping Bass Pro Shop and its customers. It says those who love the outdoors are being stereotyped as discriminating people who don't support equal opportunity for everyone. The EEOC denies this claim.

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July 17, 2012

Kentucky Sexual Harassment Case to Cost City over $250,000

In 2009, an employee at the Fayette County Detention Center in Kentucky alleges that her supervisor sexually harassed her. Her lawsuit stated that he humiliated her in front of her co-workers and an inmate on separate occasions. She also claimed that he touched her breast. When she reported this behavior, she was supposedly a victim of retaliation as well. The lawsuit named the director of the detention center and the city. She was one of three women who filed lawsuits against the detention center alleging sexual harassment, racial discrimination, and retaliation.

This Kentucky sexual harassment case went to trial in March 2012. The jury handed down a split decision, which means they agreed with the plaintiff on some points and agreed with the defendants on others. The detention center director was excused from the case by the judge because he did not think the director played a role in the harassment. The jury found that the supervisor had indeed harassed the employee, but did not find any evidence that he actually touched her breast. Jurors also did not think there was enough evidence to prove her supervisor had retaliated against her after she complained about his behavior. They awarded the sexual harassment victim $60,000, most likely to cover any lost wages and to compensate her for any emotional or mental distress the alleged harassment may have caused her. Some of the damages may have been awarded simply to punish the city for allowing this to happen and to persuade city officials not to allow this to happen again at the detention center. Damages of this type are called "punitive damages." The employee that was allegedly harassed says she is thankful that someone listened to her.

As a further blow to the city and its bank account, the judge agreed that the city was responsible for the plaintiff's attorneys' fees that accrued during the preparation and attending of the trial. They totaled just over $200,000. If the city decides to appeal this decision and loses, it will likely be held responsible for those additional attorneys' fees as well.

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July 4, 2012

Wrongful Termination and "At-Will" Employment in Kentucky and Indiana

Kentucky and Indiana are both "at-will" employment states. What this means is that employees can be demoted or fired by their employers at any time. Workers who have certain types of contracts with their employers or are union workers may be more protected when it comes to being demoted or fired by their employers. If it is legal for employers to fire employees for pretty much any reason, how do Kentucky and Indiana wrongful termination lawsuits even exist?

An employee can claim wrongful termination for a variety of reasons. The most obvious is if an employee has a written contract to work a certain length of time and the employer fires him before the contract is up. Breaking a union contract through firing may also lead to a wrongful termination lawsuit, but only after the proper grievance procedure of the union is followed.

Most often, wrongful termination cases arise from other situations. If someone thinks they have been let go because of their race, religion, age, gender, or disability, this may constitute workplace discrimination and they may be able to take legal action. In a recent Kentucky wrongful termination case, a former vice president of the Courier-Journal has filed a lawsuit stating he was wrongfully terminated because of his age. He was let go at age 62 and was told that his job was being eliminated. Subsequently the newspaper allegedly hired someone who was younger than him to fill the position. Employees over the age of 40 are covered by the Age Discrimination in Employment Act (ADEA), which prohibits employers from terminating employees based only on their age.

If an employee is fired for trying to protect their legal rights, that may also qualify them for wrongful termination. For example, if someone with a disability requests a reasonable accommodation at work and they are fired, they may have been wrongfully terminated as retaliation for asserting their rights. In the case of an Indiana tennis coach who just settled a wrongful termination lawsuit against Ball State, her suit alleged that she was fired as retaliation for her sexual discrimination complaint. The university recently settled with her for $710,000.

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