Judge dismisses retaliation claim

• DOI: http://doi.org/10.1002/nba.30629
• Date: 01 July 2019
• Published date: 01 July 2019

JULY 2019 NONPROFIT BUSINESS ADVISOR

11

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DOI: 10.1002/nba

form stating that he might be able to return to work

in January.

The administrator told the plaintiff in December

that the senior accountant position had been elimi-

nated, and offered him the choice of either the new

position or a severance package.

The plaintiff complained that he was the victim

of disability discrimination and said he wanted to

return to his old job.

In March 2015, an attorney wrote a letter request-

ing that the plaintiff: (1) return to his original posi-

tion, (2) work less than eight hours per day for the

rst 120 days, and (3) work from home during those

rst months. A doctor’s report was attached to the

letter that recommended four-hour workdays with

some physical limitations for several weeks, but it

didn’t mention anything about working from home.

The city rejected all of those requests, but it did

offer to allow four-hour work days for the rst month.

The plaintiff never returned to the job.

After he was red in April, the plaintiff led a suit

claiming a failure to accommodate.

The trial judge granted a summary judgment in

favor of the city.

EMPLOYER WINS ➔ On appeal, the court stated

that the plaintiff wasn’t entitled to his old job because

(1) he hadn’t returned to work prior to the expiration

of his FMLA leave and (2) there wasn’t any medical

reason for a return to the old position because both

were sedentary desk jobs.

The panel also ruled that the request to work from

home was unreasonable because (1) his doctor didn’t

recommend it and (2) the plaintiff had admitted

that another employee would have to scan certain

documents and also bring the payroll checks to his

house. The court explained that an employer wasn’t

obligated to reassign existing workers to assist a dis-

abled employee with essential duties.

The appellate court afrmed the trial judge’s ruling

in favor of the city.

[Brunckhorst v. City of Oak Park Heights, U.S.

Court of Appeals for the Eighth Circuit, No. 17-3238,

02/04/2019].

Retaliation

Judge dismisses retaliation claim

The plaintiff began working for the City of Chi-

cago water department in 1993. In 2012, he unsuc-

cessfully applied for promotion to superintendent.

The co-worker who was selected for that position

then became the plaintiff’s supervisor.

From that time on, the plaintiff began having

trouble with that new superintendent.

In September, the plaintiff refused that supervi-

sor’s request to lower a ag to half-staff in honor

of the Twin Towers attack. In October, the plaintiff

complained to the Equal Employment Opportunity

Commission that he didn’t get the superintendent job

because he was black. In November, the supervisor

charged the plaintiff with insubordination because of

the September ag incident. That ultimately resulted

in verbal counseling. And in December, the supervi-

sor charged the plaintiff with disobeying a directive

to stop leaving reservoirs at dangerously low levels.

However, the plaintiff wasn’t disciplined.

The plaintiff led a complaint with human re-

sources in March 2013, alleging that a co-worker (1)

made racially offensive remarks to him and (2) had

been assigned to intimidate him.

The department concluded after an investigation

that the allegations weren’t proven.

In May, a subordinate led an HR complaint al-

leging that the plaintiff had (1) discriminated against

him by denying him the opportunity to work overtime

and (2) threatened him with a knife. The department

concluded after an investigation that the plaintiff

wrongfully denied overtime, but the workplace vio-

lence charge wasn’t proven. The only discipline the

plaintiff received was a written reprimand about the

overtime issue.

The plaintiff led a suit that asserted a host of

claims. One was retaliation for ling the 2012 EEOC

complaint. In support of that claim, he set forth all of

the previous incidents and also alleged that disciplin-

ary matters were still pending.

The city led a motion for summary judgment,

arguing there was no adverse employment action.

The district court judge said a plaintiff claiming

retaliation must show an “adverse employment ac-

tion,” which was an event that would likely dissuade

a reasonable employee from engaging in a protected

activity. She also explained that an individual was

only protected from retaliation that caused some type

of injury or damage.

EMPLOYER WINS ➔ The judge ruled that the

charges about the ag and the reservoirs weren’t ad-

verse employment actions because the former merely

resulted in verbal counseling and the latter didn’t

result in discipline.

She also ruled that the charge concerning overtime

wasn’t signicant, because written reprimands weren’t

adverse employment actions unless they changed the