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SPEAKERS:
Patrick H. Flanagan
(704) 940-3419
[email protected]
Norwood P. Blanchard
(910) 332-0944
[email protected]
Ryan D. Bolick
(704) 940-3416
[email protected]
SPEAKERS:
Patricia L. Holland
(919) 424-8608
[email protected]
M. Robin Davis
(919) 424-8609
[email protected]
Ann H. Smith
(919) 424-8610
[email protected]
RETALIATORY
EMPLOYMENT
DISCRIMINATION
ACT (REDA)
RETALIATORY EMPLOYMENT
DISCRIMINATION ACT (REDA)
 Enacted
 N.C.
in 1992
Gen. Stat. § § 95-240 to 249
 Enforced
by Employment Discrimination
Bureau of NC DOL
ELEMENTS OF A REDA CLAIM

In order to establish a claim against an
employer under REDA, the employee must
show:
1. He/She exercised a right to engage in a
protected activity;
2. He/She suffered an adverse employment
action; and
ELEMENTS OF A REDA CLAIM
3. A causal connection exists between the
exercise of the protected activity and the
alleged retaliatory action. (Close temporal
proximity.)
(Smith v. Computer Task Groups, Inc., 568
F.Supp. 2B 603, M.D.N.C. 2008)
WHAT IS A PROTECTED ACTIVITY?

REDA provides that no person shall discriminate
or take retaliatory action against an employee
who in good faith takes action or threatens to:

File a complaint

Initiate any inquiry, investigation, inspection,
proceeding, or other action, or

Testify or provide information to any person
regarding the following matters:
WHAT IS A PROTECTED ACTIVITY?

Workers’ Compensation Act

Wage and Hour Act

Occupational Safety and Health Act

Mine Safety and Health Act

Sickle Cell or Hemoglobin C trait

Genetic Testing or Genetic Information

National Guard Service

Domestic Violence Proceedings

Juvenile Justice Proceedings
WHAT IS AN ADVERSE
EMPLOYMENT ACTION?
 Discharge
 Suspension
 Demotion
 Retaliatory relocation
 Other adverse employment action in the
terms, conditions, privileges and benefits of
employment
WHAT IS AN ADVERSE
EMPLOYMENT ACTION?
 Constructive Discharge?
 Prior to July 2005, NC DOL position was yes
 NC common law does not recognize a
constructive discharge as a tort claim.
Whitt v. Harris Teeter, Inc., 359 N.C.
614 S.E.2d 531 (July 1, 2005).
625,
WHAT IS A “CLOSE TEMPORAL
PROXIMITY”?

One Day – Lilly v. Mastec N. Amer., Inc., 302
F.Supp. 2d 471, 482 (M.D.N.C. 2004).
WHAT IS A “CLOSE TEMPORAL
PROXIMITY”?

Less than one month – Martin v. Nationwide
Mutual Insurance Company No. 1: 99CV00956,
2001 W.L. 604192 8-9 2001U.S. Dist. LEXIS 9038 2425 (M.D.N.C. April 20, 2001)
WHAT IS A “CLOSE TEMPORAL
PROXIMITY”?

Six years – Tarrent v. Freeway Foods of
Greensboro, Inc., 163 N.C.App. 504, 511, 593
S.E.2d 808, 813 (2004)

Avoid:

Asking questions like: Will you behave? You’re not
going to fall again are you?

Telling employee that her workers’ compensation
claims cost a lot of money.
WHAT IS THE ABSENCE OF A
“CLOSE TEMPORAL PROXIMITY”?

2 ½ months – Salter v. E & J Healthcare, 155
N.C.App. 685, 575 S.E.2d 46 (2003)

81 days – Brown v. Sears Automotive Center,
222 F.Supp. 2nd 757 (N.D.N.C. 2002).

3 months – Shaffner v. Westinghouse Elec.
Corp., 101 N.C.App. 213, 216 398 S.E.2d 657, 659
(1990)
PRACTICAL TIPS AND DEFENSES

The Good Faith Requirement

Statute of Limitations DOL Charge cannot
be filed more than 180 days after last alleged
discriminatory or retaliatory act.

Right to Sue Employee must file lawsuit
within ninety (90) days of receipt of a Right to
Sue letter from the Department of Labor.
PRACTICAL TIPS AND DEFENSES
N.C.G.S. § 95-241 provides a complete defense
to any REDA claim.
It states: It shall not be a violation of this Article
for a person to discharge or take any other
unfavorable action with respect to an employee
who has engaged in protected activity as set
forth under this Article if the person proves by
the greater weight of the evidence that it would
have taken the same unfavorable action in the
absence of the protected activity of the
employee.
PRACTICAL TIPS AND DEFENSES

If the decision maker did not know that the
employee engaged in a protected activity, this
fact if proven provides a complete defense
Brown v. Sears Automotive Center, 222 F.Supp.
2d 757 (2002).
PRACTICAL TIPS AND DEFENSES

In order to file a civil
action against an
employer, an employee
must exhaust
administrative
remedies.
PRACTICAL TIPS AND DEFENSES

Employee must file a Charge with the Department of
Labor.
The Department of Labor has the power to investigate
the allegations including obtaining documents from the
employer as well as subpoenaing witness.

The Department of Labor may then file suit on behalf of
the employee or issue a Right to Sue letter to the
employee.

Employer has an opportunity to present a position
statement in defense of the employee’s allegations.
WHAT REMEDIES ARE AVAILABLE
UNDER REDA?





Injunction to stop the continuing violation of REDA.
Reinstatement of the employee to the same position
held before the retaliatory action/discrimination or to an
equivalent position.
 Reinstatement of full fringe benefits and seniority
rights.
Compensation for lost wages, lost benefits, and other
economic losses that were proximately caused by the
retaliatory action /discrimination.
If the court finds there was a willful violation of REDA,
the court can triple the amount awarded from
compensation.
Assess the respondent costs and expenses including
attorneys fees for bringing the action.
Questions?
SPEAKERS:
Patrick H. Flanagan
(704) 940-3419
[email protected]
Norwood P. Blanchard
(910) 332-0944
[email protected]
Ryan D. Bolick
(704) 940-3416
[email protected]
SPEAKERS:
Patricia L. Holland
(919) 424-8608
[email protected]
M. Robin Davis
(919) 424-8609
[email protected]
Ann H. Smith
(919) 424-8610
[email protected]