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Can an employee be fired after filing a lawsuit against an employer who the employee is still working for.Isn't it retaliation?

Boca Raton, FL |

I am a health care worker and complained about my supervisor to the department director about her discriminating against me. Within a short time I was written up and the third time was the final notice. I filed a lawsuit and it is still in progress, but unfortunately since I have not find a job anywhere else I'm still working for the same hospital. Today which is after two months of filing the lawsuit, I was taken to the HR and the director discussed two simple incidents and tried to make them look like life threatening incidents where I had performed the procedures. They suspended me and sent me home until further notice. Can they fire me? Would not that be retaliation?

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Best Answer

These circumstances raise important points about the law and specifically about employment law:
When attorneys talk about what your employer "can" and "can't" do under the law, we don't mean that the employer won't act differently than we contend the law requires. Employees get unlawfully fired every single day, all day long. The law may inhibit employer actions, but it cannot effectively prevent such action. And it only inhibits employer action when the employer recognizes that the action may be unlawful. Where the employer is convinced that the action will be be found lawful, or where the employer is willing to take the risk of a subsequent determination of unlawfulness, the employer will ordinarily take the action it prefers. Then, it is up to the employee to initiate legal process and to pursue that process to a satisfactory remedy and resolution. And that is a great deal more of a gamble than most claimants understand.

Picture a funnel. At the top, we see a lot of employee terminations, some of which the employee and/or an employment attorney contend are unlawful. Some -- but not all -- of those will be the basis for a lawsuit. Now, some -- but not all -- of those lawsuits will go away before trial or settlement for various procedural failures and defects. Some will go away because the evidence can't be mustered or falls apart. Some will go away because the claimant's resources are exhausted or out-spent.

Working our way down the funnel, some -- but not all -- of the cases that don't go away pre-trial will be settled for amounts that the employer finds bearable -- worth it to get rid of the employee. And some -- but not all -- of the remaining cases will go to trial where some -- but not all of those will be won by the employer. As for the cases lost by the employer at trial, some of those will be appealed and some of those appeals will be won.

Viewing the funnel as a whole, the numbers will always reveal that employers often exercise the power to terminate even where there is a contention that the employee "can't" be fired. As for those employees who "can't" be fired, what that really means is that if the employee sues and if the suit survives the rigorous gauntlet of long and uncertain legal process -- through the stages of settlement, trial and appeal -- the employee may receive compensatory damages at the end. In the meantime, financial obligations, raising children, mortgages, heath care, etc.all persist. None of that goes away or is covered by a rescuing angel because of the on-going lawsuit. It is inarguable that employees who haven't been fired, and who aren't at risk of being fired, need to fully understand the FUNNEL before affirmatively making legal war on the current employer.

Can you be fired after suing your employer. Of course you CAN. Is it legal? Will it be upheld after years down the legal road? Ask your attorney. Is your claim worth the risk? That is the plaintiffs' dilemma, the hardest decision of any lawsuit.

In 20+ years as a management-side attorney for an employer with a workforce of 20,000 plus, an employer without "at will" powers as most have, I never -- not even once -- saw an employee engaged in active litigation against the employer stay employed with that employer. How many of these terminations of employees litigating against the employer were later found unlawful? ZERO. It is a fact that no employee's performance is so perfect over a sustained course of time that the employer cannot find grounds for termination that will pass muster -- if the employer needs to find those grounds and articulate a defense. This is an ugly truth that we don't give much attention to here on Avvo, but one that compels potential plaintiffs' understanding.

If you get fired and a good lawyer will bring a legal challenge, that's one thing. If you aren't fired, and aren't otherwise going to be fired, that's another thing altogether. As the carpenters say: measure twice, you only get to cut once.

No legal advice here. READ THIS BEFORE you contact me! My responses to questions on Avvo are never intended as legal advice and must not be relied upon as if they were legal advice. I give legal advice ONLY in the course of a formal attorney-client relationship. Exchange of information through Avvo's Questions forum does not establish an attorney-client relationship with me. That relationship is established only by joint execution of a written agreement for legal services. My law firm does not provide free consultations. Please do not call or write to me with a “few questions” that require me to analyze the specific facts of your history and your license application and prescribe for you how to get a State license. Send me an email to schedule a paid Consultation for that kind of information, direction, and assistance. My law firm presently accepts cases involving State and federal licenses and permits; discipline against State and federal licenses; and disciplinary and academic challenges to universities, colleges, boarding schools, and private schools. We take cases of wrongful termination or employment discrimination only if the claims involve peace officers, universities or colleges.

Christine C McCall

Christine C McCall


Postscript: the short version of my response: 95% of all employers make the other 5% look bad.


Do you have an attorney representing you? You should direct these questions to them.

My response to this question does not mean I agree to represent you in any proceedings. This information is also not subject to attorney-client privilege.


It might be retaliation - probably is - but proving it requires that you be able to show that they're treating you differently than employees in your position who have committed similarly serious "offenses" and not been suspended or fired. If you don't have a lawyer you should try your hardest to get one.

My answering this question does not form an attorney-client relationship. Always retain a qualified attorney before taking any action. My office offers free consultations.


(1) Did you actually file a lawsuit, or, did you file a charge of discrimination with the EEOC? If I had to guess, I'd guess that you filed a charge with the EEOC.

(2) If you actually have filed a lawsuit, I assume you have an attorney. If you actually filed a lawsuit and are proceeding pro se, I suggest you try to find an attorney at this time. If you have a good case, many attorneys will handle your case on a pure contingency fee.

(3) An employer cannot retaliate against you for filing a charge of discrimination against them with the EEOC. That is legally protected activity.

Please feel free to call my office for further assistance.


Jonathan Pollard

My response to this question is a response to a hypothetical situation based on limited facts. I am not your attorney; you are not my client and we do not have an attorney-client relationship. If you need a lawyer, you should contact one in your area. If you would like to talk with me about your case, you can call my office.


There are some important follow-up questions that will let someone measure the significance of what the employer's done. First, you said you complained about discrimination. Not all discrimination is unlawful. For example, some of us like blue and others like yellow.To have been actionable discrimination, it must've been a complaint about race or sex or national origin, etc. There are no magic words but the discrimination – must have been about some unlawful discrimination.

The next question is whether being employer has a legitimate basis for the things that they have done after you filed a lawsuit. Filing the lawsuit doesn't make you immune from workplace decisions. If the employer has disciplined other people for the same behavior about which you are charged, it's not retaliation. However, if they're watching your work more carefully and disciplining you for little things that are not offenses for others, then you have a complaint ofretalioation.