the most marginal of cases, because of their fact intensive nature, retaliation claims should survive summary judgment. 4. Posi-Burlington Northern federal caselaw. Burlington Northern was something of a bombshell in the employment law world. As a general matter, there seemed to be little question that under Burlington Northern, more retaliation cases would survive summary judgment. Further, most of the post-Burlington Northern federal caselaw recognized that in determining whether a plaintiff has suffered disparate treatment, the “terms, conditions, and privileges of employment” test was not applicable in retaliation cases. The lower federal courts widely came to recognize that in retaliation cases, a lesser standard applies. See Powell v. Lockhart, 629 F.Supp.2d 23, 41 (D.D.C. 2009) (<HOLDING>). Burlington Northern emphasized the proper
holding estoppel claim could not lie in tort where the facts that support the claim could not support a claim for fraud or misrepresentation holding a broad claim with no factual support was insufficient to satisfy rule 9b holding that general employment practices are relevant to eeoc investigation of individual disparate treatment claim holding that statistical evidence that was too broad to support a prima facie case of systemic disparate treatment was nevertheless admissible in plaintiffs individual disparate treatment case but noting that a valid statistical analysis must encompass the rel evant labor market holding that placing employee on performance improvement plan was insufficient to support disparate treatment claim but could support retaliation claim because of lesser standard