Remember: Discord isn’t always retaliation

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in Discrimination and Harassment,Firing

You can’t retaliate against employees who complain about alleged discrimination in the workplace. But what’s retaliation? Tense working conditions don’t always fit that bill.

There can be many explanations for rising tensions that have nothing to do with a discrimination complaint. And an employee who sues for retaliation won’t win if he can’t connect his complaint with an adverse action. Timing alone isn’t enough.

Recent case: Air Marshal Shawn McCullers didn’t get along with his supervisor at the Air Marshal Service. McCullers and his boss had several run-ins over things like dress codes.

Then McCullers developed deep vein thrombosis and was hospitalized. The condition can be aggravated by frequent flying as McCullers was required to do. It can be fatal if a leg-vein clot breaks loose and travels to the heart or brain. Thus, he was effectively grounded.

He applied for federal workers’ compensation benefits, which his supervisor allegedly delayed.

Meanwhile, McCuller’s supervisor sent an email offering a light-duty position a few days after McCullers filed an internal bias complaint. McCullers didn’t respond right away. His supervisor, apparently frustrated, then cut off McCullers’ email access, and also charged McCullers with misusing his employer-issued credit card. Despite being off work anyway, McCullers was suspended. Eventually, McCullers was fired when it appeared he would remain unable to work as an air marshal, since he could no longer fly.

McCullers sued, alleging his supervisor had retaliated against him by cutting off email access and pushing for his discharge.

The court dismissed the charges, concluding there was evidence the supervisor and McCullers were already on a collision course before the discrimination complaint and that the complaint didn’t prompt the escalation of tensions. (McCullers v. Napolitano, No. 10-1461, 3rd Cir., 2011)

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