DEFENDANTS' FIRST DEFENSE Defendants' deny the position applied for was 'Operations Manager' of WYBB and WCOO. Reference Plaintiff's Exhibit 165 attached hereto and made a part hereof. "The OM". And reference Plaintiff's Exhibit 167 attached hereto and made a part hereof. Defendants' deny the amount of salary applied for. Reference Plaintiff's Exhibit 165 attached hereto and made a part hereof. "50k+". Defendants' deny the job was meant to be until retirement. Reference Plaintiff's Exhibit 160 attached hereto and made a part hereof. Under no other circumstances, than a decision that would be made by both husband and wife would an employer have required the signature of an employee's spouse before agreeing to cause employment and advance pay for a move. The 'agreement' has no ending and no starting date. Therefore it has no definitive term other than at the will of the employer and the employee. Requiring the signature of both husband and wife ensures the employee and his spouse was agreeing to a long term employment relationship. Plaintiff's wife is a former cancer patient and disabled, unable to work and therefore unable to be responsive to any repayment obligations of her husband's pay advance. Defendants deny a conference call regarding Patricia Thompson following her letter advising of allegations: Reference Plaintiff's Exhibit 72, made a part hereof, "the team decided not to move … crap pending with Skip's firing and Trish's resignation" which took place in a conference call. Defendants deny a personal telephone investigation by Lynn Martin. Reference Plaintiff's Exhibit 54, made a part hereof. Defendants deny the decision maker had knowledge that the Plaintiff engaged in protected activities, Reference Plaintiff's Exhibit 75 made a part hereof: "Threatening Palestinian gunmen". Reference Plaintiff's Exhibit 48, made a part hereof. General Manager refuses to stop harassment. Defendants deny a telephone investigation by Lexington KY Attorney William W. Allen placed to Plaintiff's home. Reference Plaintiff's Exhibit 55, made a part hereof. Defendants deny a fax to Martin confirming his call. Reference Plaintiff's Exhibit 54, made a part hereof. Defendants deny a fax to Attorney Allen confirming his call. Reference Plaintiff's Exhibit 55, made a part hereof. Defendants deny additional information to Lynn Martin. Reference Plaintiff's Exhibits 15, 16, 17, 19, 20, 21, 57, 75 and 48, made a part hereof. All information provided to a Consultant is provided to the Group Owner as the Consultant reports to the Group Owner. I do, .. I I did appreciate your concern and your passion for Lee even though if it was up to me, if he would have said something to me, I would have asked him to do it differently, he did it the way he thought he needed to do it, that's fine, you know Defendants' admission of Complaint #4 is counter to Defendants' SIXTH DEFENSE. Reference Plaintiff's Exhibit 72, direct evidence, made a part hereof as a matter of fact, "the team decided not to move … crap pending with Skip's firing and Trish's resignation" which took place in a conference call. Title VII of the Civil Rights Act of 1964, prohibit(s) retaliation by an employer ... because an individual has engaged in protected activity. Protected activity consists of the following: (1) opposing a practice made unlawful by one of the employment discrimination statutes (the "opposition" clause); or (2) filing a charge, testifying, assisting, or participating in any manner in an investigation, proceeding, or hearing under the applicable statute (the "participation" clause). A charging party who alleges retaliation under Title VII, ... need not also allege that he was treated differently because of race, religion, sex, national origin, age, or disability A charging party can challenge retaliation by a respondent even if the retaliation occurred after their employment relationship ended There are three essential elements of a retaliation claim: 1) opposition to discrimination or participation in covered proceedings 2) adverse action 3) causal connection between the protected activity and the adverse action B. PROTECTED ACTIVITY: OPPOSITION 1. Definition The anti-retaliation provisions make it unlawful to discriminate against an individual because s/he has opposed any practice made unlawful under the employment discrimination statutes Examples of Opposition Threatening to file a charge or other formal complaint alleging discrimination Complaining to anyone about alleged discrimination against oneself or others Refusing to obey an order because of a reasonable belief that it is discriminatory 3. Standards Governing Application of the Opposition Clause Although the opposition clause in each of the EEO statutes is broad, it does not protect every protest against job discrimination. The following principles apply: a. Manner of Opposition Must Be Reasonable Opposition Need Only Be Based on Reasonable and Good Faith Belief Person Claiming Retaliation Need Not Be the Person Who Engaged in Opposition Practices Opposed Need Not Have Been Engaged in by the Named Respondent C. PROTECTED ACTIVITY: PARTICIPATION 1. Definition The anti-retaliation provisions make it unlawful to discriminate against any individual because s/he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, hearing, or litigation under Title VII, This protection applies to individuals challenging employment discrimination under the statutes enforced by EEOC in EEOC proceedings, in state administrative or court proceedings, as well as in federal court proceedings, and to individuals who testify or otherwise participate in such proceedings Protection under the participation clause extends to those who file untimely charges. 2. Participation Is Protected Regardless of Whether the Allegations in the Original Charge Were Valid or Reasonable The anti-discrimination statutes do not limit or condition in any way the protection against retaliation for participating in the charge process. While the opposition clause applies only to those who protest practices that they reasonably and in good faith believe are unlawful, the participation clause applies to all individuals who participate in the statutory complaint process. 3. Person Claiming Retaliation Need Not Be the Person Who Engaged in Participation 4. The Practices Challenged in Prior or Pending Statutory Proceedings Need Not Have Been Engaged in by the Named Respondent D. ADVERSE ACTION 1. General Types of Adverse Actions The most obvious types of retaliation are denial of promotion, refusal to hire, denial of job benefits, demotion, suspension, and discharge. Other types of adverse actions include threats, reprimands, negative evaluations, harassment, or other adverse treatment. Suspending or limiting access to an internal grievance procedure also constitutes an "adverse action." 2. Adverse Actions Can Occur After the Employment Relationship Between the Charging Party and Respondent Has Ended In Robinson v. Shell Oil Company,\31 the Supreme Court unanimously held that Title VII prohibits respondents from retaliating against forme employees as well as current employees for participating in any proceeding under Title VII or opposing any practice made unlawful by that Act. 3.Adverse Actions Need Not Qualify as "Ultimate Employment Actions" or Materially Affect the Terms or Conditions of Employment to Constitute Retaliation E. PROOF OF CAUSAL CONNECTION In order to establish unlawful retaliation, there must be proof that the respondent took an adverse action because the charging party engaged in protected activity. Proof of this retaliatory motive can be through direct or circumstantial evidence. The evidentiary framework that applies to other types of discrimination claims also applies to retaliation claims. 1. Direct Evidence If there is credible direct evidence that retaliation was a motive for the challenged action, "cause" should be found. Evidence as to any legitimate motive for the challenged action would be relevant only to relief, not to liability. Direct evidence of a retaliatory motive is any written or verbal statement by a respondent official that s/he undertook the challenged action because the charging party engaged in protected activity. Such evidence also includes a written or oral statement by a respondent official that on its face demonstrates a bias toward the charging party based on his or her protected activity, along with evidence linking that bias to the adverse action. Such a link could be shown if the statement was made by the decision-maker at the time of the adverse action 2. Circumstantial Evidence The most common method of proving that retaliation was the reason for an adverse action is through circumstantial evidence. A violation is established if there is circumstantial evidence raising an inference of retaliation and if the respondent fails to produce evidence of a legitimate, non-retaliatory reason for the challenged action, or if the reason advanced by the respondent is a pretext to hide the retaliatory motive. CIRCUMSTANTIAL EVIDENCE OF RETALIATION 1. Evidence raises inference that retaliation was the cause of the challenged action; 2. Respondent produces evidence of a legitimate, non-retaliatory reason for the challenged action; and 3. Complainant proves that the reason advanced by the respondent is a pretext to hide the retaliatory motive. Even if the respondent produces evidence of a legitimate, nondiscriminatory reason for the challenged action, a violation will still be found if this explanation is a pretext designed to hide the true retaliatory motive. Typically, pretext is proved through evidence that the respondent treated the complainant differently from similarly situated employees or that the respondent's explanation for the adverse action is not believable. Pretext can also be shown if the respondent subjected the charging party's work performance to heightened scrutiny after she engaged in protected activity Proven retaliation frequently constitutes a practice undertaken "with malice or with reckless indifference to the federally protected rights of an aggrieved individual." Therefore, punitive damages often will be appropriate in retaliation claims brought under any of the statutes enforced by the EEOC South Carolina allows punitive damages, except in actions against the state or other governmental entity and in product liability actions based on strict liability. Punitive damages are allowed upon a showing by clear and convincing evidence of malice, ill will, a conscious indifference to the rights of others, or a reckless disregard thereof. King v. Allstate Ins. Co., 251 S.E.2d 762 (S.C. 1979). S.C. Code § 15-33-135. Even if there were a requirement that the challenged action affect the terms or conditions of employment, retaliatory acts that create a hostile work environment would meet that standard since, as the Supreme Court has made clear, the terms and condition of employment include the intangible work environment. Meritor Savings Bank v. Vinson, 477 U.S. 57, 64-67 (1986). For examples of cases recognizing that retaliatory harassment is unlawful, see DeAngelis v. El Paso Municipal Police Officers Ass'n., 51 F.3d 591 (5th Cir.), cert. denied, 116 S. Ct. 473 (1995); Davis v. Tri-State Mack Distributor, 981 F.2d 340 (8th Cir. 1992). Reference Plaintiff's Exhibits 182 and Exhibit 181 (transcript line 232), direct evidence, attached hereto and made a part hereof as a matter of fact, in which Charlie Cohn, General Manager Rule 8 requires is a ‘short and plain statement of the claim’ that will give the defendant fair notice of what the plaintiff’s claim is and the ground upon which it rests. The U.S. Supreme Court recently reaffirmed this principle in Swierkiewicz v. Sorema. In Swierkiewicz the Court held that a plaintiff pleading Title VII and Age Discrimination in Employment Act claims was not required to plead each element of a prima facie case of discrimination. Noting that the McDonnell Douglas standard was an evidentiary, not a pleading, requirement, the Court held that the complaint need only give “fair notice of the basis for [Plaintiff ’s] claim.”