To prevail on a claim of retaliation under federal law, an employee must prove that he or she engaged in a “protected activity” under an antidiscrimination statute and subsequently suffered an adverse employment action. In addition, the employee must establish that the protected activity was “causally connected” to the employer’s adverse action.

The Fourth Circuit Court of Appeals recently held, in an unpublished opinion, that a deaf employee whose intimidating, disrespectful, and personally offensive behavior with coworkers and contractors was documented as the basis of his firing could not show that those reasons were pretextual or that the true reason for his discharge was the fact that he had complained about the quality of his interpreters. Pearlman v. Pritzker, No. 13-1563, April 3, 2014.

Michael Pearlman, who is deaf, worked for the National Oceanic and Atmospheric Administration (NOAA) as a program analyst since June 2010. During his tenure there, Pearlman requested the services of an interpreter, and the NOAA granted his request as a reasonable accommodation. However, Pearlman found 12 of the 14 interpreters—all of whom had been provided by an outside contractor—as substandard.

In 2010, several coworkers complained about Pearlman’s workplace behavior. According to reports provided by the NOAA’s Deputy Director of the Workforce Management Office, Pearlman was “abrupt and demanding,” and had “intimidating, disrespectful, or personally offensive” interactions with coworkers.

In December 2010, Pearlman was warned about his conduct, and he agreed to take action to improve his relationship with coworkers. However, the company alleged that his behavior failed to improve. Shortly thereafter, NOAA fired Pearlman.

Pearlman sued the Secretary of the U.S. Department of Commerce, which oversees the NOAA, under the Rehabilitation Act, a law analyzed under the standards of the Americans with Disabilities Act (ADA). He alleged that rather than firing him for his conduct, the NOAA fired him for complaining about the caliber of the interpreters provided for his deafness.

The lower court concluded that Pearlman had made out a prima facie case of retaliation by showing that (1) he engaged in a protected activity, (2) he suffered an adverse employment action, and (3) the time period between his complaints and his firing was sufficient to create a causal nexus between the protected activity and adverse action.

However, the lower court also found that there was a legitimate, nondiscriminatory, and nonpretextual reason for Pearlman’s discharge: his “disruptive, rude, sarcastic” behavior. The Fourth Circuit agreed, finding that “Pearlman has produced no evidence other than his own speculative assertions to raise an inference suggesting the falsity of the proffered nondiscriminatory bases for his termination. Speculation is not enough [to avoid summary judgment].”

In this case, it was the employer’s written record that painted a picture of events that could not be contradicted by Pearlman’s speculations. Objective documentation, supported by witness testimony or other evidence can help to provide the basis for dismissal of an employee’s claims of retaliation, when those claims are based on speculation and unsupported evidence.

 

Topics:  ADA, Adverse Employment Action, Anti-Discrimination Policies, Best Management Practices, Documentation, Employer Liability Issues, NOAA, Protected Activity, Retaliation, U.S. Commerce Department

Published In: Civil Procedure Updates, Civil Rights Updates, Labor & Employment Updates

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Ogletree, Deakins, Nash, Smoak & Stewart, P.C. | Attorney Advertising

Don't miss a thing! Build a custom news brief:

Read fresh new writing on compliance, cybersecurity, Dodd-Frank, whistleblowers, social media, hiring & firing, patent reform, the NLRB, Obamacare, the SEC…

…or whatever matters the most to you. Follow authors, firms, and topics on JD Supra.

Create your news brief now - it's free and easy »