3-12 § 1630.12. Retaliation and Coercion
(a) Retaliation. It is unlawful to discriminate against any individual because that individual has opposed any act or practice made unlawful by this part or because that individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing to enforce any provision contained in this part.
(b) Coercion, interference or intimidation. It is unlawful to coerce, intimidate, threaten, harass or interfere with any individual in the exercise or enjoyment of, or because that individual aided or encouraged any other individual in the exercise of, any right granted or protected by this part.
3-12:1 Commentary
Did the plaintiff exhaust administrative remedies?
Recall that a charge of discrimination must be perfected before a plaintiff can allege a retaliation claim in a lawsuit brought pursuant to the ADA.
• Self v. BNSF Ry. Co., No. A-14-CA-618-SS, 2016 U.S. Dist. LEXIS 15500 (W.D. Tex. Feb. 8, 2016) (plaintiff's retaliation claim dismissed; while he checked off retaliation box on EEOC charge form, he failed to describe or even mention in the body of the charge any protected activity that he engaged in).
3-12:1.1 Was the Plaintiff Engaged in Protected Activity?
A key question is whether an individual engages in protected activity when he or she asks for a reasonable accommodation, but the employee is not entitled to one because the employee does not have an ADA-covered disability.
• Kirkeberg v. Canadian Pac. Ry., 619 F.3d 898, 90 (8th Cir. 2010) ("An individual who is adjudged not to be a qualified individual with a disability may still pursue a retaliation claim under the ADA as long as [he] had a good faith belief that [a] requested accommodation was appropriate.").
The threshold question in a retaliation claim is whether the plaintiff engaged in protected activity, as one Texas court highlighted:
• Spinks v. Trugreen Landcare, LLC, 322 F. Supp. 2d 784 (S.D. Tex. 2009) (no protected activity where plaintiff's purported protected activity consisted of taking time off to care for disabled family member).
Counsel, though, should always ask, "If there is no retaliation claim, is there still an 'association claim'?"
An issue dividing Texas courts is whether requesting FMLA leave is a "protected" activity for purposes of an ADA retaliation claim.
• Villalon v. Del Mar Coll. Dist., No. C-09-252, 2010 WL 3221789 (S.D. Tex. Aug. 13, 2010) (holding that employee engages in protected activity).
• Munoz v. Echosphere, LLC, No. 09-CV-0308, 2010 WL 2838356 (W.D. Tex. July 15, 2010) (not protected activity).
An ancillary question is whether an employee engages in protected activity if he asks for an accommodation, but it is later determined he is not disabled.
• Cash v. Magic City Motor Corp., No. 7:16-CV-00192, 2017 U.S. Dist. LEXIS 8128 (W.D. Va. Jan. 20, 2017) (no protected activity by merely informing the employer that employee has a disability; but if employee goes further and asks for a reasonable accommodation, employee does engage in protected activity provided that employee had a good faith belief that employee was entitled to request; moreover, a retaliation claim does not require a plaintiff to show the he or she is...
