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Son had standing to bring retaliation claim based on father’s discrimination complaints against previous employer, but couldn’t show prospective employer knew of complaint

By Nicole D. Prysby, J.D. Although a son had standing to bring a retaliation claim based on his father’s protected activity, the claims of both father and son failed for lack of evidence that the employer knew of the protected activity when it declined to hire either father or son, held a federal district court in New York. A reasonable worker could be dissuaded from bringing a claim against his employer if he were aware that, in doing so, he might affect his son’s future employment prospects, the court reasoned. But the retaliation claims failed nonetheless because no reasonable jury could find that the employer was aware of the father’s prior protected activity—a discrimination claim filed against his previous employer (Barnett v. National Passenger Railroad Corp. (Amtrak), December 10, 2018, Failla, K.). Discrimination complaint. Both father and son submitted applications for positions with Amtrak. Several years earlier, the father had filed discrimination claims against his prior employer, New Jersey Transit. His complaint asserted there was “gender discrimination in a predominantly male occupation and a culture of fear and reprisal that is tolerated and exist[s] in most if not all modern Class I Railroads in the United States.” He alleged New Jersey Transit fired him in retaliation for his complaint. Applications rejected. Neither father nor son was hired by Amtrak, and both asserted that they were not selected because Amtrak was aware of the father’s prior discrimination suit. They both received rejection letters by email within seconds of each other. The rejections came five months after they submitted their online applications—but only 30 days after the father resolved his discrimination case against New Jersey Transit after six years of litigation. Supervisory personnel at the two employers had close working and professional relationships, the plaintiffs alleged—such that the second employer would have been aware of the father’s complaints against the first, and that personnel at his former employer had influence over hiring decisions at Amtrak. Standing. The employer argued that the son had no standing to bring a retaliation claim because he personally had not engaged in protected activity; he was a job applicant, not an employee; and there were two different employers at issue. The court rejected this contention, looking to the Supreme Court’s 2011 opinion in Thompson v. North American Stainless, LP, which upheld third-party Title VII retaliation claims. While the Second Circuit has not yet explicitly applied Thompson “to cases raising the granular issue of third-party claims against prospective, as opposed to current, employers,” the court extended the reasoning of Thompson to apply in such instances, citing “the general spirit of the Supreme Court’s decision.” A reasonable worker could certainly be dissuaded from bringing a claim against his employer if he were aware that, in doing so, it might affect his son’s employment opportunities in the future, the court said. It was irrelevant whether those opportunities are with the same employer, or a prospective employer in the same field. Therefore, the son had standing to pursue his claim. No knowledge of protected activity. However, the claims of both father and son failed because no reasonable jury could find that the employer was aware of the father’s prior protected activity. The father asserted that he had disclosed his prior protected activity on the online job application when responding to the question of why he left his previous employment. But the employer produced sufficiently authenticated evidence, in the form of sworn declarations from two Amtrak employees, that he had left that question blank. Moreover, no reasonable jury could find that the employer became aware of the father’s protected activity from personnel who had worked at both employers, the court found. Although one personnel employee worked at both employers (and worked at the father’s previous employer at the time he had made his discrimination complaint), there was no evidence that the employee was actually aware of the father’s protected activity. Had he been aware, his knowledge could have been imputed to the employer, but the only evidence presented on that point was a single ambiguous email.