For years, employment law lawyers have seen that an employee’s retaliation claim against an employer for filing a charge, complaint or lawsuit, is often a greater problem than the original issue which precipitated it. Recently, in Breda v. Kindred Braintree Hospital, 10 OCAHO no. 1202 (2013), a retaliation claim in an immigration-related unfair employment practice setting was addressed by OCAHO.

Kindred Braintree Hospital LLC entered into two agreements with John A. Breda, M.D. in 2009, for performing overnight emergency services and scheduling other physicians for overnight emergency services. In April 2010, Kindred notified Breda that it was terminating both agreements.

The case began when Breda filed a charge with the Office of Special Counsel (OSC) for Immigration-Related Unfair Employment Practices in June 2010, alleging Kindred discriminated against him based on his U.S. citizenship by terminating the agreements and replacing him with an H-1B visa holder. OSC advised Breda that he could file a complaint with OCAHO. Breda declined to do so and filed an action in Massachusetts state court. Kindred filed a counterclaim alleging the original OSC charge was frivolous and sought to recoup its attorney’s fees and expenses as well as seek damages from Breda. The State Court dismissed Kindred’s counterclaim.
Breda filed a second OSC charge alleging Kindred’s counterclaim was made in retaliation for Breda filing the original OSC charge. Breda’s second charge proceeded to litigation before OCAHO.

Kindred asserted OCAHO did not have jurisdiction over the second charge alleging retaliation. OCAHO disagreed and found jurisdiction because 8 U.S.C. §1324b(a)(5) states it is “an unfair immigration-related employment practice for a person or other entity to …retaliate against any individual for engaging in protected conduct.” Since the initial OSC charge was protected conduct and thereafter Kindred filed a retaliatory counterclaim in state court, Breda met the statutory requirements.
OCAHO explained Kindred’s conduct has a “chilling effect” on Breda as well as “protected charging parties or witnesses who may become aware of Kindred’s counterclaim and be deterred” from having contact with the OSC or other agencies.
To remedy its unlawful conduct, Kindred was barred from relief under its counterclaim, ordered to post a notice advising employees of their rights (similar to a notice under the National Labor Relations Act due to an unfair labor practice) and remove negative information from Breda’s personnel file.