Beware even the simplest discipline: Court says oral reprimand can be retaliation
Ordinarily, when an employee receives a reprimand that doesn’t carry negative consequences, such as a pay cut or transfer, courts won’t consider the reprimand an “adverse employment decision.” As a practical matter, that means an employee can’t base a discrimination lawsuit on a simple reprimand.
But that doesn’t mean an oral reprimand can’t be retaliation. Why? A reasonable employee might be dissuaded from complaining about alleged discrimination if he knew he would earn an unwarranted oral reprimand as a result.
Recent case: Derrick Boone, who is black, worked as a member of the St. Paul Police Department Gang Unit. During his off hours, Boone also worked at the Dorothy Day Center, a homeless shelter.
A shelter resident told a counselor that Boone sent inappropriate text messages to her, gave her a ride in his police car, gave her gifts and had sex with her in the police car. When Boone learned of the allegations, he informed the police department.
The department assigned Boone to desk duty while it investigated the charges. Boone then wrote a letter to higher-ups complaining about his treatment and claiming the department would have treated him differently if he weren’t black.
The police department issued Boone an oral reprimand after reviewing the letter and concluding that his complaints were unfounded.
Meanwhile, the department continued its investigation of the shelter incident. It learned that the front seats of the car Boone had been assigned were wet and smelled of disinfectant. It also reviewed 12 texts Boone and the woman had exchanged. By a narrow margin, the committee considering whether Boone had broken any department rules concluded that there was not enough evidence to warrant punishment.
Boone sued anyway, charging that the oral reprimand was retaliation for complaining about racial bias.
The court agreed in theory. It said that formal discipline—even at the lowest level—might dissuade a reasonable employee from complaining in the first place. (Boone v. City of St. Paul, et al., No. 09-1920, DC MN, 2011)
Final note: The court dismissed Boone’s case anyway, noting the police department had a legitimate reason for reprimanding him: Boone had made false allegations of racial bias.
Cut retaliation risk with this post-complaint discipline checklist
___Have you investigated the allegations? If so, were they true or false? If true, have you remedied the situation?
___If the allegations were false, how have you punished others who also made false allegations? Make sure the discipline is the same this time. If the situation is different, document why the punishment is different.
___If you are contemplating discipline unrelated to the discrimination complaint, do you have a documented legitimate business reason for the discipline? Can you easily explain why the employee should be disciplined?
Once you have answered these questions, run the facts by your attorney before taking official action.
