ORDER
This matter is before the court on Plaintiff Dianne Baker’s objections to Magistrate Judge John R. Strother, Jr.’s Report and Recommendations on Defendants Summit Unlimited, Inc., d/b/a Howell Station Academy, J. Richard Moulton and Margaret Ann Moulton’s first motion for partial summary judgment. Neither party has objected to the report and recommendation on Defendants’ second motion for partial summary judgment.
In the first report, the Magistrate Judge recommends that Plaintiff’s Title VII claims under 42 U.S.C. § 2000e-3, for retaliatory discrimination for opposing her request for unemployment benefits and in denying her full access to the child care center *376 like other parents or their designees are not actionable as a matter of law. Since these were the only acts which occurred after the enactment date of the Civil Rights Act of 1991, he recommends that Plaintiffs request for a jury trial and for punitive and compensatory damages be denied. The report and recommendation states that although “post-termination conduct may rise to the level of actionable retaliation,” such conduct is only actionable if it may be considered an “adverse employment action.”
Plaintiff contends that this characterization of the law is too narrow. This court must agree. A fundamental tenet of American jurisprudence historically is that no one may penalize another for exercising his or her right to pursue or participate in legal or equitable actions.
See, e.g.
18 U.S.C. §§ 1501-1514 (obstruction of justice provisions); 5 U.S.C. § 1214 (whistle-blower provisions for federal employees). Likewise, § 704(a) of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-3, as amended, prohibits an employer from discriminating against any job applicant or any employee who makes a charge or assists or participates in an investigation or proceeding conducted pursuant to Title VII. This provision has been interpreted by a majority of circuits to include discriminatory acts conducted post-termination against
former
employees.
Sherman v. Burke Contracting, Inc.,
In this case Plaintiff alleges two types of retaliatory conduct: Defendants’ opposition to Plaintiffs claim for unemployment compensation before the Georgia Department of Labor, and Defendants’ refusal to allow Plaintiff to enter the child care center classrooms to pick up children as otherwise permitted by the center’s policies for other parents or their designees. As to the opposition of Plaintiffs receipt of unemployment compensation, Georgia law provides that an employer may successfully challenge a terminated employee’s application for unemployment benefits if it can show by a preponderance of the evidence that an employee has been discharged from work with her most recent employer for failure to obey orders, rules, or instructions, or for failure to discharge the duties for which employed. O.C.G.A. § 34-8-157(b)(1). If the challenge is unsuccessful, the employer’s tax account is charged a pro rata share of the benefits paid to the claimant. O.C.G.A. § 34-8-157(a)(1). Furthermore, an employer may be charged for benefits paid to a claimant where it fails to respond, and later it is found that benefits should not have been paid. O.C.G.A. §
34-
8-157(b)(3). When Plaintiff filed her claim, Defendants responded as required. They argued, as presumably they are doing in this case, that Plaintiff was discharged for cause or based on a legitimate non-diseriminatory reason. Such opposition was clearly the employer’s right and duty and not retaliatory in nature, since Plaintiff initiated the unemployment benefits process and the employer participated as required. To defend itself in that process cannot be likened to the cases cited by Plaintiff where the defendants-employers initiated malicious and false legal proceedings against the former employee because the employee had filed an EEOC charge.
See, e.g., EEOC v. Virginia Carolina Veneer Corp.,
The allegation that Defendants have not allowed Plaintiff, acting as a parent designee in picking up children at the center, to enter the classrooms like other parents and their designees, however, is actionable. While it is true that the eases addressing post-termination retaliatory conduct have most often included facts centered around poor recommendations given to subsequent potential employers who have inquired about the former employee or the filing or threatening to file legal actions, nothing in the statute would indicate such a limitation. The Magistrate Judge presumably relied on the second prong of the traditional
prima facie
Title VII retaliation test that requires that the plaintiff show an “adverse employment action.” The word discriminate as found in the actual statute, however, is not so limited.
See Goldsmith v. City of Atmore,
In conclusion, therefore, this court must reject the Magistrate Judge’s first Report and Recommendation [15-1]. Defendants’ first motion for partial summary judgment is DENIED [10-1] to the extent that Plaintiff seeks punitive and compensatory damages and a jury trial on her retaliation claim. Defendants’ first motion for partial summary judgment, however, is GRANTED [10-1] to the extent that Plaintiff seeks the retroactive application of the punitive and compensatory damages and jury trial provisions found in the Civil Rights Act of 1991 to her termination claims.
Curtis v. Metro Ambulance Service,
SO ORDERED.