Worried that a supervisor’s isolated, ill-advised comment about a subordinate’s cooperation in a discrimination case will mean an automatic win if the employee sues for retaliation? It’s not a sure thing.
The employee still has to prove
(1) that he was punished and
(2) that the punishment occurred because he participated in protected activity.
Recent case: John testified in a co-worker’s race discrimination case against their employer, the town of Hempstead. A supervisor was then heard to say that John had thrown the town “under the bus” and “had to go.” A few months later, John was demoted.
John sued, alleging retaliation. As evidence, he pointed to the supervisor’s comment about John’s testimony. He argued that testifying was protected activity, that his supervisor wanted to punish him for that activity and that the employer did, in fact, punish him with a demotion.
But the town said there was more to the story.
It argued that John had actually set the demotion process in motion by asking to have his job description and position reviewed. That review showed that John wasn’t performing some of the tasks in the job description, but was doing some supervisory work that wasn’t specified in the job description.
At that point, the town said it had no choice but to demote him to a position commensurate with his actual and assigned job duties.
The court agreed. It said John instigated the review that got him demoted, and that his testimony and his supervisor’s ill-advised comment had nothing to do with the action. The court dismissed his case. (Puglisi v. Town of Hempstead, No. 12-3815, 2nd Cir., 2013)
Final note: Warn supervisors never to discuss any employee’s testimony in a discrimination case.