Is threatening a countersuit against a whistleblower an act of retaliation?

Yes, some courts have held that threatening to sue a whistleblower can be retaliatory if the counterclaim (i) lacks “reasonable basis in fact or law” and (ii) was filed with “retaliatory motive.” The key factor is whether the threat of filing a countersuit against a whistleblower could well dissuade a reasonable worker from engaging in further protected whistleblowing, which includes prosecuting a whistleblower retaliation claim.

In Brach v. Conflict Kinetics Corp., 221 F. Supp. 3d 743 (E.D. Va. Dec. 1, 2016), Judge Ellis held:

In this respect, in Darveau v. Detecon, Inc., the Fourth Circuit held that even a counterclaim could be retaliatory if the counterclaim (i) lacks “reasonable basis in fact or law” and (ii) was filed with “retaliatory motive.” 515 F.3d at 341. Moreover, the Fourth Circuit in Darveau held that a plaintiff asserting an FLSA retaliation claim “need only allege” an action that “could well dissuade a reasonable worker from making or supporting a charge of discrimination.” Id. at 343. Thus, if the text messages in this case “could well dissuade a reasonable worker from making or supporting” an FLSA claim, then Brach’s FLSA retaliation claim survives at the Rule 12(b)(6) stage.

Here, the text messages — which threaten that Brach could lose his savings and $100,000 as a result of bringing the instant lawsuit — and the allegations in the [complaint] are sufficient under Darveau to state a plausible claim that a reasonable worker could well be dissuaded from supporting an FLSA overtime claim. Similarly, the [complaint] states sufficient facts to make it plausible that the text messages were sent with retaliatory motive and without reasonable basis in fact or law.

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