MEMORANDUM AND ORDER

THOMAS W. PHILLIPS, United States District Judge

Plaintiff, a former employee of defendants, has sued defendants for damages for terminating his employment in violation of the Age Discrimination in Employment Act, the Americans with Disabilities Act, and the Tennessee Human Rights Act. On November 19, 2002, plaintiff filed a separate lawsuit against defendants alleging a retaliation claim arising from defendants' counter-claim filed in this case. The court consolidated plaintiff's retaliation lawsuit with the instant case. Currently before the court is defendants' motion to dismiss plaintiff's retaliation claim pursuant to Rule 12(b)(6), Federal Rules of Civil Procedure [Doc. 28].

Background

Plaintiff was employed by defendant for 35 years, and at the time of his termination was President of American Limestone, Inc., a subdivision of defendant corporation. Plaintiff's wife was diagnosed with bone cancer in September of 2000, and after informing his employer of his wife's diagnosis, plaintiff alleged that his job duties were shifted more and more to subordinates. In December 2000, when plaintiff was with his wife in Texas for cancer treatments, plaintiff was informed that defendants were changing his job and that he would have much less authority and responsibility. On January 12, 2001, plaintiff was informed by his supervisor that he had been replaced and was to be "retired" effective January 31, 2001. Plaintiff was told he was being retired because he could not travel due to his wife's "situation," and that her condition would be a distraction to him. Plaintiff filed the instant suit alleging he was terminated as a result of his wife's disabilities or because defendants regarded her as having a disability, and/or due to plaintiff's age.

In response to plaintiff's claims, defendants brought a counterclaim for breach of contract, unjust enrichment, conversion and spoliation, claiming that plaintiff breached his contract with defendants and intentionally destroyed numerous file cabinets of documents belonging to defendants. Plaintiff then asserted a claim for retaliation arising from defendants' counter-claims. Defendants have now moved for dismissal of plaintiff's retaliation claim.

In support of their motion, defendants state that plaintiff cannot establish a claim for retaliation because defendants have taken no "adverse employment action" against him in filing their counterclaims. Defendants further state that their legitimate, compulsory counterclaims do not constitute an adverse employment action, as plaintiff's employment with defendants ended over a year before the counterclaims were filed. In addition, defendants state that plaintiff cannot show a causal connection between the filing of his EEOC charge and subsequent lawsuit and the filing of defendants' counterclaims.

Moreover, defendants assert they had legitimate, non-discriminatory reasons for filing the counterclaims: (1) the counterclaims were compulsory under Rule 13, Federal Rules of Civil Procedure; and (2) the counterclaims did not accrue until plaintiff filed his suit. Therefore, defendants argue that plaintiff's retaliation claim should be dismissed by the court.

Plaintiff has responded in opposition, stating that the filing of a suit against an employee who has engaged in protected activities can be unlawful retaliation under a broad construction of the anti-retaliation statutes, a concept endorsed by the Sixth Circuit. In the present case, plaintiff alleges that defendants filed the counterclaim against him in retaliation for engaging in protected oppositional activities. Plaintiff further states that the impetus behind Title VII's anti-retaliation provision is the need to prevent employers from deterring victims of discrimination from complaining to the EEOC, and that countersuits filed by employers can have a "chilling effect" on the pursuit of discrimination claims. Plaintiff asserts that a retaliatory act need not be employment related in order to be actionable under Title VII. Therefore, plaintiff argues that defendants' motion to dismiss should be denied.

Analysis

A motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6), Federal Rules of Civil Procedure "should not be granted unless it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957). All well-pleaded allegations must be taken as true and be construed most favorably toward the nonmovant. Scheurer v. Rhodes, 416 U.S. 232, 236 (1974); Mayer v. Mylod, 988 F.2d 635, 637 (6th Cir. 1993). While a court may not grant a Rule 12(b)(6) motion based on disbelief of a complaint's factual allegations, Lawler v. Marshall, 989 F.2d 1196, 1199 (6th Cir. 1990), the court "need not accept as true legal conclusions or unwarranted factual inferences." Morgan v. Church's Fried Chicken, 829 F.2d 10, 12 (6th Cir. 1987). Consequently, a complaint will not be dismissed pursuant to Rule 12(b)(6) unless there is no law to support the claims made, the facts alleged are insufficient to state a claim, or there is an insurmountable bar on the face of the complaint.

Defendants have moved to dismiss plaintiff's retaliation claim on the basis that plaintiff could prove no set of facts that would entitle him to relief. In particular, defendants assert that plaintiff cannot satisfy the adverse action requirement. Plaintiff disputes this assertion.

Retaliation claims under the ADEA, the ADA, and the THRA are analyzed similarly to Title VII cases. See Penny v. United Parcel Service, 128 F.3d 408, 417 (6th Cir. 1997) ("Retaliation claims are treated the same whether brought under the ADA or Title VII."); Shirley v. Chrysler First, Inc., 970 F.2d 39, 42 n. 5 (5th Cir. 1992) (indicating that cases interpreting Title VII are frequently relied upon in interpreting the ADEA); Steffes v. Stepan Co., 144 F.3d 10170, 1074 (7th Cir. 1998) (stating that elements of retaliation claim are identical under Title VII and ADA); Bruce v. Western Auto Supply Co., 669 S.W.2d 95, 97 (Tenn.App. 1984) (stating that federal law interpreting Title VII is controlling for purposes of interpreting the THRA).

In order to state a claim for retaliation under the statutes, plaintiff must show that (1) he engaged in protected activity; (2) the exercise of protected rights was known to the defendants; (3) the defendants thereafter took adverse employment action; and (4) there was a causal connection between the protected activity and the adverse employment action. See EEOC v. Avery Dennison Corp., 104 F.3d 858, 860 (6th Cir. 1997).

Defendants contend that plaintiff is unable to satisfy the adverse action requirement because the adverse action complained of, i.e., defendants' filing of a counterclaim, cannot be considered employment related since it occurred more than one year after plaintiff's employment was terminated. Defendants argue that it is well-established in the Sixth Circuit that in order to satisfy the adverse action requirement, plaintiff must show a "materially adverse employment action." Kocsis v. Multi-Care Management, Inc., 97 F.3d 876, 886 (6th Cir. 1996)

In Kocsis, the Sixth Circuit identified several factors which identify whether an employment action is materially adverse. The factors include "termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices that might be unique to a particular situation." Id. at 886.

Plaintiff does not dispute this authority, but argues that a counterclaim can constitute adverse action for purposes of a retaliation claim, relying on EEOC v. Outback Steakhouse of Florida, Inc., 75 F. Supp.2d 756 (N.D.Ohio 1999). In that case, the court held that the anti-retaliation provision of Title VII is not limited simply to discrimination affecting employment terms but may include other forms of discrimination that are allegedly adverse to the employee or former employee. The EEOC commenced its lawsuit against defendant Outback Steakhouse alleging that a counterclaim Outback had filed against its former employee in a separate, earlier action for sexual harassment commenced by the employee, constituted retaliation under Title VII. Outback moved to dismiss the claim by the EEOC on the basis that its earlier counterclaim against the former employee had no affect on her employment status and could not be actionable under Title VII. The district court disagreed.

The court's analysis started with the anti-retaliation statute itself, which provides: "It shall be an unlawful employment practice for an employer to discriminate against any of his employees . . . because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding or hearing under this subchapter." 42 U.S.C. § 2000e-3. The first step in any interpretation of a statute is to determine whether the language at issue has a "plain and unambiguous meaning, with regard to the particular dispute in the case." Robinson v. Shell Oil Co., 519 U.S. 337 (1997). The inquiry must cease if the language is unambiguous and the statutory scheme is "coherent and consistent." Id., quoting United States v. Ron Pair Enterprises, Inc., 489 U.S. 235, 240 (1989). The court recognized that the term "employee" includes "former employee." Outback Steakhouse of Florida, Inc., 75 F. Supp.2d at 757-58, citing Robinson v. Shell Oil Co., 519 U.S. 337 (1997). The court went on to conclude that the kind of discrimination prohibited cannot be limited simply to a change in employment status.

The reasoning for this is simple: nothing in the plain language of the statute admits of such a qualification, and there is nothing in the statute which the court finds ambiguous. Title VII states that employers cannot discriminate against employees in retaliation for employees' participation in claims brought under the statute. In the case at hand, the complaint alleges that Outback discriminated against [plaintiff] in filing a counterclaim against her, and that Outback had a retaliatory motive in doing so. "If the statutory language is unambiguous, in the absence of a `clearly expressed legislative intent to the contrary, that language must be regarded as conclusive.'" Russello v. United States, 464 U.S. 16, 20 (1983) (citations omitted). The EEOC's complaint states a claim under the unambiguous language of 42 U.S.C. § 2000e-3.

Furthermore, the court reasoned that, although the substantive provisions of Title VII clearly limited actionable discrimination to claims that are related to employment, the anti-retaliation provision "contains no such qualifiers, prohibiting only discrimination that takes place because an employee has `made a charge, testified, assisted, or participated' in actions under Title VII. The inclusion of qualifying language in Title VII's substantive provision, and its exclusion in the anti-retaliation provision, implies that a retaliatory act need not be employment-related in order to be actionable under Title VII." Id.

The court further reasoned that this result is not inconsistent with the holding in Kocsis, which did "not pass on whether the retaliatory act needs to be employment related under Title VII. Rather . . . [it only goes] to whether the alleged retaliatory act was sufficiently adverse."Id. at 759. The impetus behind Title VII's anti-retaliation provision is the need to prevent employers from deterring victims of discrimination from complaining to the EEOC. Robinson v. Shell Oil, 519 U.S. at 346). It is certainly true that "a lawsuit . . . may be used by an employer as a powerful instrument of coercion or retaliation" and that such suits can create a "chilling effect" on the pursuit of discrimination claims. Bill Johnson's Restaurants, Inc. v. NLRB, 461 U.S. 731, 740-41 (1983).

While the Sixth Circuit has not addressed this precise issue, the majority of courts, including the Supreme Court, have been willing to construe Title VII and companion provisions under the Fair Labor Standards Act and the ADEA broadly in order not to frustrate the purpose of these Acts, which is to prevent fear of economic retaliation from inducing employees "quietly to accept [unlawful] conditions." See Mitchell v. Robert DeMarco Jewelry, Inc., 361 U.S. 288, 292 (1960); EEOC v. Ohio Edison Company, 7 F.3d 541, 544-45 (6th Cir. 1993). This court is persuaded by the foregoing analysis and, like the court in Outback Steakhouse, concludes that the anti-retaliation provisions of the ADA, ADEA, and the THRA cannot be exclusively limited to adverse actions that are changes in the employment relationship.

This ruling is in accord with decisions from a number of other courts which have also found that "the filing of lawsuits, not in good faith and instead motivated by retaliation, can be the basis for a claim under Title VII." Harmar v. United Airlines, Inc., 1996 WL 199734 (N.D.Ill.). In EEOC v. Virginia Carolina Veneer Corp., 495 F. Supp. 775, 778 (W.D.Va. 1980), for instance, the court found that the filing of a state court defamation action was "unquestionably retaliatory" under Title VII. See also Cozzi v. Pepsi-Cola General Bottlers, Inc., 1997 WL312048 (N.D.Ill.). In addition, courts have found retaliatory litigation under the ADEA and noted the similarity between the ADEA and Title VII. In Passer v. American Chemical Society, 935 F.2d 322 (D.C. Cir. 1991), although the conduct complained of was still employment related, the court ruled that under the ADEA the employer need only have "engaged in conduct having an adverse impact on the plaintiff." Id. at 331. In Blistein v. St. John's College, 860 F. Supp. 256, 267-68 (D.Md. 1994), a district court found that retaliatory action under the ADEA need not be employment related and could include the filing of a counterclaim.

The court notes defendants' opposition to this view and takes particular notice that defendants have cited several cases from the Fifth and Eighth Circuits for the proposition that counterclaims are not retaliatory because they do not constitute an adverse employment action. However, the Fifth Circuit analyzes the "adverse employment action" element more strictly than do most other circuits, and in this regard, has acknowledged it holds a minority view. See Burger v. Central Apartment Management, Inc., 168 F.3d 875, 878 n. 3 (5th Cir. 1999). In Wideman v. Wal-Mart Stores, Inc., 141 F.3d 1453 (11th Cir. 1998), the Eleventh Circuit discussed the split between the Fifth and Eighth Circuits and the other circuits and concluded:

We join the majority of circuits which have addressed the issue and hold that Title VII's protection against retaliatory discrimination extends to adverse actions which fall short of ultimate employment decisions. The Fifth and Eighth Circuits' contrary position is inconsistent with the plain language of 42 U.S.C. § 2000e-3 (a), which makes it "unlawful to discriminate against any of his employees because he has made a charge. . . ." Read in the light of ordinary understanding, the term "discriminate" is not limited to "ultimate employment decisions." Moreover, our plain language interpretation of 42 U.S.C. § 2000e-3(a) is consistent with Title VII's remedial purpose. Permitting employers to discriminate against an employee who files a charge of discrimination so long as the retaliatory discrimination does not constitute an ultimate employment action, could stifle employees' willingness to file charges of discrimination.

Defendants also assert that the retaliation claim should be dismissed, in part, because their counterclaim was a compulsory counterclaim under Rule 13(a), Federal Rules of Civil Procedure. Defendants could have brought their counterclaims as independent claims at any time. Clearly they did not accrue when plaintiff filed his discrimination complaint, but they would have accrued at the time he committed the actions defendants assert. I find defendants' argument without merit.

Conclusion

In light of the foregoing, defendants' motion to dismiss plaintiff's retaliation claim [Doc. 28] is DENIED.

IT IS SO ORDERED.