Is that a ‘Protected activity’—Or insubordination?

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in Employment Law,Human Resources,Leaders & Managers,Management Training

Employees know that their employers can’t retaliate against them for filing EEOC complaints, complaining about discrimination or engaging in otherwise protected activity. Retaliation can be any act that would cause a reasonable employee to hesitate before complaining about discrimination.

However, it doesn’t follow that employees are free to taunt their supervisors by pulling the protected-activity card. As the following case shows, refusing to follow directives can be punishable insubordination, even if the employee invokes his right to engage in protected activity.

Recent case:
Timothy Grey was terminated from his job as a security guard for a school district. The reason: alleged insubordination.

Management had discovered that Grey’s driver’s license had been suspended, so they ordered him to desk duty until he got his license back. Then they caught Grey riding on patrol with several officers. When a supervisor confronted Grey about disobeying orders, he retorted, “You want to talk, we can talk to my attorney.”

After he was fired, he sued, alleging that he had been punished for invoking his right to an attorney. He contended he was engaged in protected activity when he told supervisors to take the matter up with legal counsel.

The court didn’t buy it. The school district’s managers wanted to discuss with Grey why he had ignored instructions, a conversation they were entitled to have. Refusing to discuss the matter was insubordination, and Grey’s refusal wasn’t justified by his desire for an attorney. (Grey v. Dallas Independent School District, et al., No. 06-10779, 5th Cir., 2008)

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