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Home / Expert Opinion / Workplace Issues: ‘But for’ cause of retaliation met in workplace claim

Workplace Issues: ‘But for’ cause of retaliation met in workplace claim

Lindy Korn

Lindy Korn

“You need to pick up all the garbage bags for this street, including the hazardous waste from the hospital,” the sanitary district supervisor said.

“You’re still after me because of what my dad told the investigators aren’t you?”(Puglisi v. Town of Hempstead Sanitary Dist. No. 2, 2013, EDNY No. 2:11-cv-00445, 11/15/13).

The plaintiff, a white man, began working for a local sanitary district in 1995. He claimed that his father, who is also white, became involved in an April 2007 investigation after co-workers said they found  “hangman’s noose” in a garage area where district workers often gathered.

Several district employees filed discrimination complaints related to the incident with the New York State Division of Human Rights, according to the court. The plaintiff’s father later told the DHR investigators during an interview that his superiors didn’t take appropriate action in response to internal complaints about the noose. He said he believed that the sanitary district has retaliated against at least one worker for filing a DHR complaint.

The plaintiff claimed that he faced a wide range of retaliation based on his father’s statements to the investigators. For example, the plaintiff said he was assigned to collect large amounts of debris in excess of limits set by local ordinance and that he was instructed to collect potentially dangerous chemicals. The plaintiff also alleged that the sanitary district refused to pay some of his medical bills that should have been covered, denied his request for leave in order to take his pregnant wife to a doctor’s appointment and issued him at least one paycheck that wasn’t signed during this time.

Since the harassment started during the DHR investigation, temporal proximity nexus exists between the father’s participation in the investigation and the beginning of the materially adverse employment actions.  “Plaintiff also offered evidence demonstrating that he was subjected to a series of employment actions that were at least, inconvenient and annoying, and at worst potentially dangerous,” the court said.

The U.S. District Court for the Eastern District of New York found that the plaintiff showed that retaliation may have been the “but for” cause of the alleged mistreatment on the job, and denied reconsideration of an earlier decision under the more lenient standard of proof recently overturned by the U.S. Supreme Court.

The district court found that the mistreatment alleged by the plaintiff constituted an adverse action because it “might reasonably dissuade a reasonable person from supporting a charge of discrimination.” In particular the judge said the plaintiff had presented evidence showing that the other workers were permitted to take leave under similar circumstances, as well as testimony from two sanitary district officials acknowledging that they weren’t aware of any other instance in which a paycheck had been issued unsigned.

This case is significant because the court has analyzed retaliation under the stricter “but for” causation requirement in University of Texas Southwestern Medical Center v. Nassar, (133 S. Ct. 2517, 6/25/13).

Lindy Korn practices at The Law Office of Lindy Korn and can be reached at lkk75atty@aol.com or (716) 856-KORN (5676).