Both Title VII of the Civil Rights Act of 1964 and the Equal Pay Act of 1963 prohibit – in addition to discrimination based on specified criteria/characteristics – “retaliation” for engaging in “protected activity”. In certain cases, “protected activity” can be the litigation itself.
In the matter of Kerrie Campbell v. Chadbourne & Parke LLP, SDNY 16-cv-6832, a gender discrimination lawsuit filed by a Chadbourne partner, defendants assert a “counterclaim” against the plaintiff.A “counterclaim” is an allegation by the defendant against the plaintiff in the same case. In federal practice, counterclaims are governed by Federal Rule of Civil Procedure 13. Plaintiff has, in turn, filed a brief asking the court to strike this counterclaim and grant her leave to amend her complaint to assert additional allegations of retaliation based on defendant’s counterclaim.
In her brief, plaintiff asserts:
In response [to plaintiff’s lawsuit], Chadbourne has resorted to naked acts of retribution. In retaliation for Ms. Campbell’s initiation of a class action and collective action on behalf of her fellow female employees, Chadbourne has filed a baseless counterclaim predicated almost entirely on Ms. Campbell’s actions in connection with this class action and collective action lawsuit. Essentially, Chadbourne claims that Ms. Campbell breached her fiduciary duty to Chadbourne by filing this lawsuit and discussing her allegations against Chadbourne with colleagues and in the public sphere. This is patently retaliatory under the broad protections afforded by Title VII and the Equal Pay Act. If Chadbourne were permitted to proceed with this in terrorem tactic against Ms. Campbell, it would have a powerful chilling effect on female employees at Chadbourne and elsewhere who would otherwise speak out against employment discrimination.
Recently, in Baez v. Anne Fontaine USA, Inc., No. 14-CV-6621 (KBF), 2017 WL 57858, at *7 (S.D.N.Y. Jan. 5, 2017), SDNY Judge Katherine B. Forrest found that plaintiff “established a prima facie case of retaliation” where “she engaged in protected activity by filing this lawsuit and suffered an adverse action by having a counterclaim filed against her shortly after she disclosed [a] recording.”