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Beware unexpected peril of undoing termination

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in Employment Law,Human Resources

Something to consider if you have an internal system for handling disciplinary appeals: Reversing a disciplinary action like a termination could be used against you later as proof of retaliation.

Recent case: Aida complained that her supervisor only promoted black Caribbean employees. She claimed she once heard her supervisor say, “Whites have always stopped me in traffic because I am black and they can’t accept a black person driving an Infiniti. That is why I always look out for my people of color. Now is my chance to promote the blacks.”

Soon after Aida complained, she alleged that her performance review suffered and that she didn’t get an annual pay raise and bonus.

Aida then filed a complaint with the New York State Division of Human Rights, as well as an internal appeal with her employer. Shortly after, she was terminated.

Eventually she was reinstated with just a 15-day suspension as part of a settlement of her state and internal complaints.

But once back at work, Aida soon complained that her employer was again retaliating against her, this time by turning down overtime requests. She again complained, alleging this was further punishment for her original complaint. Then she sued.

Her employer argued too much time had passed for her overtime requests to be linked to that first complaint.

But, the court said she could use the overturned discharge decision as proof of her employer’s retaliatory motive. After all, it had reversed the termination as unwarranted. And, because as soon as she returned to work, her employer allegedly found other ways to punish her, it was possible that her original complaint “still rankled her supervisors and reignited their retaliatory motivation.” Her case will proceed. (Domenech v. New York City Employees’ Retirement System, No. 15-CV-2521, ED NY, 2016)

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