Back to basics: No retaliation claim if no protected activity

Retaliation claims are among the most numerous types of employee claims processed through the Equal Employment Opportunity Commission (EEOC) and state EEO agencies. Central to the claims is whether an employee engaged in protected activity and how the employer responded to it. A recent case from the U.S. 8th Circuit Court of Appeals (whose rulings apply to all Nebraska employers) involving Nebraska law on retaliation is exemplary.

Facts

Two caregivers employed by a retirement community witnessed a resident sexually assaulting other residents several times. Per company policy, employees had to report resident abuse immediately by reporting any incident to a supervisor, completing an incident report, and making a note in the resident’s chart. The two employees claimed they reported observing the abuse, but on at least one occasion, they waited to make their report until the day after the incident.

The Nebraska Department of Health and Human Services (DHHS) responded to an anonymous complaint about the resident’s abuse and made an unannounced site visit of the facility. Shortly after, a retirement community manager claimed she was unaware of the abuse that led DHHS to the facility. Several employees stated the manager must have been aware of the abuse because the employees reported it. Upon completion of the visit and a staff meeting, the two caregiver employees were terminated.