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The Wagner Law Group

The Wagner Law Group, A Professional Corporation, is a nationally recognized ERISA & employee benefits, estate planning, employment, labor & human resources practice. 


Established in 1996, The Wagner Law Group has 22 attorneys engaged exclusively in employee benefits, estate planning and employment law. Six of our attorneys are AV rated by Martindale-Hubbell as having very high to preeminent legal abilities and ethical standards. The firm is among the largest ERISA boutiques in the country. Our practice is national in scope, with clients in more than 40 states and several foreign countries.





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The Wagner Law Group


  Integrity | Excellence



Tel: (617) 357-5200 

Fax: (617) 357-5250 

99 Summer Street 

13th Floor

Boston, MA 02110

Palm Beach Gardens 

Tel: (561) 293-3590
Fax: (561) 293-3591
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Palm Beach Gardens, FL 33418



Tel: (813) 603-2959

Fax: (813) 603-2961

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Tampa, FL  33602 


San Francisco

Tel: (415) 625-0002

Fax: (415) 358-8300

300 Montgomery Street

Suite 600

San Francisco, CA 94104


St. Louis

Tel: (314) 236-0065

Fax: (314) 236-5743
100 South 4th Street, Suite 550
St. Louis, MO  63102 







June 29, 2016


 Employment Law Alert




Important Decision for Employers on Discrimination Claims and Retaliation






In Verdrager v. Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, P.C. ("Verdrager v. Mintz"), the Massachusetts Supreme Judicial Court ("SJC") ruled that a plaintiff could proceed with a claim of retaliation despite being fired for violating the firm's privacy policy.  Specifically, the SJC determined that the lower court was wrong to dismiss the matter because a jury could reasonably determine that the plaintiff was demoted then fired because of discrimination.  


Background. Massachusetts and federal law prohibits employers from retaliating against employees who file complaints about alleged discrimination.  Retaliation occurs when an employee: 1) reasonably believes that there has been discrimination; 2) takes steps to oppose that discrimination; 3) suffers an adverse employment action; and 4) demonstrates evidence that the employer acted in response to the employee's opposition of discrimination.  A claim of retaliation is separate and distinct from an employee's discrimination claim and a retaliation claim may succeed even if the underlying discrimination claim fails.


Lower Court.  In Verdrager, a terminated employee filed a lawsuit that alleged her former employer retaliated against her following her reporting what she perceived as gender discrimination.  In particular, the plaintiff alleged that immediately after she complained about alleged discrimination in the workplace, the employer retaliated by giving her negative reviews and a demotion.  The plaintiff further alleged that she was fired after engaging in self-help that involved emailing herself files stored on the employer's database which she believed contained "smoking gun" proof of her allegations.  


The employer countered by claiming that it fired the plaintiff for cause because she violated its privacy policy by emailing herself the files. In response, the plaintiff asserted that her termination was merely another act of retaliation by the employer. 


The employer filed a motion to request that the matter be dismissed, and the court granted this request on the basis that it found no evidence in the record to support that the employer fired the plaintiff because of her gender. In turn, the plaintiff filed an appeal with the SJC.   


SJC.  The SJC held that the plaintiff's retaliation lawsuit could proceed to trial because a jury could reasonably believe that the plaintiff was demoted then fired because of the discrimination she allegedly faced.  With respect to the plaintiff's first claim of retaliation, the SJC determined that motivation could be inferred from the employer's pattern and practice of giving the plaintiff poor reviews over a period of several years, which began immediately after she made her first internal complaint of discrimination. 


Regarding the plaintiff's second claim of retaliation, the SJC held that a jury could find in her favor, even though she engaged in self-help and in so doing, violated the firm's privacy policy.  The SJC noted that there will be acts of self-help discovery that may constitute "protected activity" if they are reasonable, given the totality of the circumstances. The SJC concluded by remanding the case back to the lower court.


Takeaway for Employers. The Verdrager decision confirms that an employer's actions will be placed under heightened scrutiny following an employee's complaint of discrimination.  Consequently, it is important for employers to ensure that supervisors are trained to avoid making statements or engaging in activities that could plausibly constitute retaliation.  Employers can also minimize the risk of retaliation claims by ensuring that no adverse actions are taken against employees who complain about discrimination, absent the advice and consent of either Human Resources, General Counsel, or employment counsel. 




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This Newsletter is provided for information purposes by The Wagner Law Group to clients and others who may be interested in the subject matter, and may not be relied upon as specific legal advice.  This material is not to be construed as legal advice or legal opinions on specific facts. Under the Rules of the Supreme Judicial Court of Massachusetts, this material may be considered advertising.