On April 3rd the Fourth Circuit Court of Appeals affirmed by unpublished per curiam opinion, that a deaf employee whose offensive behavior with coworkers was documented as the basis of his firing could not show 1) that those reasons were pretextual, or 2) that the true reason for his discharge was the fact that he had complained about the quality of his interpreters. Evidence of pretextual reasons for the employee's dismissal or presentation of actual evidence by the employee may have lead to a different outcome for this notable retaliation claim.
Michael Pearlman, a deaf man, was hired in June 2010 as a program analyst at the National Oceanic and Atmospheric Administration (NOAA). He requested the services of an interpreter during his tenure, which NOAA provided by virtue of a preexisting arrangement it had with an outside contractor. Pearlman found twelve of the fourteen interpreters substandard, placing them on his “do not call” or “black-list.”
Pearlman's employment with NOAA was terminated in May 2011, one year after his start date. In the termination memorandum, Christine Carpino, the Deputy Director of the Workforce Management Office, wrote that Pearlman's “performance and conduct” did not merit continued employment with NOAA. In summary, Carpino wrote that Pearlman had taken credit for work that he had not done and that his conduct was consistently “unacceptable and unbecoming a federal employee.” Carpino had received complaints about “the manner” in which Pearlman interacted with his coworkers as he was reported as “abrupt and demanding,” “intimidating, disrespectful or personally offensive.” He exhibited “outbursts of anger and frustration when co-workers disagreed” with him, wrote communications that were “inappropriately sarcastic and verging on hostile in tone”.
He had previously received warnings about his conduct and agreed to take several actions that would improve his working relationship with his coworkers. His behavior, however, continued and culminated in two more incidents of loud and aggressive behavior, including contacting the president of the contractor to complain about unacceptable interpreters.
Upon his termination in May 2011, Pearlman sued Penny Pritzker, Secretary of the U.S. Department of Commerce, for violations of the Rehabilitation Act. 29 U.S.C. § 794(a). He contended that he was discriminated against on the basis of his deafness and that he was terminated for complaining about the inadequacy of the interpreter services, a reasonable accommodation to which he was entitled under law.
The district 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 district 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].” Further details of the case and decision can be found by searching Pearlman v. Pritzker, No. 13-1563, April 3, 2014.
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. The employee must also establish that the protected activity was “causally connected” to the employer's adverse action. In this case, the employer's written record detailed 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.
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