It’s not unusual for defendants in employment cases to file counterclaims against plaintiffs. And when that happens, it’s not unusual for the plaintiff to amend her complaint to assert a retaliation claim, alleging that the counterclaim was filed in retaliation for the employee’s legally protected filing of her lawsuit.
The employee alleging retaliation may have a point: It may be true that the employer would not have brought a legal action against the employee absent the filing of the employee’s claims against the company. In that sense, the filing of a counterclaim can be seen as retaliatory.
On the other hand, why should an employer be precluded from fighting back and asserting its legal right to file a counterclaim? If that’s automatically unlawful retaliation, then the deck would seem to be stacked against the employer.
When I litigated this issue a few years ago, I was surprised to find that the Eleventh Circuit Court of Appeals (which covers Florida, Georgia, and Alabama) had never articulated the legal standard to apply in determining whether the employer’s counterclaim was actionable as retaliation.
Recently, in Smith v. Miami-Dade County, 621 Fed. Appx. 955 (11th Cir. 2015), the Eleventh Circuit was faced with the issue when the plaintiff appealed the dismissal of her retaliation claim, which she filed in response to the employer’s counterclaim. The counterclaim asserted that plaintiff’s Americans with Disabilities Act lawsuit was a breach of the parties’ worker’s compensation settlement agreement.
Adopting the standard applied by the U.S. Supreme Court in cases under the National Labor Standards Act, as well as a 2008 Fourth Circuit decision, the Eleventh Circuit held that “the plaintiff must allege that the lawsuit or counterclaim was filed with a retaliatory motive and was lacking a reasonable basis in fact or law.” Id. at 960.
This legal standard seems about right. It reaches a sensible middle ground between the employee’s interest in pursuing employment-related claims without fear of having to defend against frivolous counterclaims, and the employer’s interest in being able to assert valid counterclaims against plaintiffs in appropriate cases.