To prevail on a claim of retaliation under federal law, an employee must prove he or she engaged in a “protected activity” under an anti-discrimination 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 4th U.S. Circuit Court of Appeals has held that a deaf employee whose intimidating, disrespectful, and personally offensive behavior with co-workers and contractors was documented as the basis of his firing could not show that those reasons were pretextual, or that the true reason for the adverse employment action was the fact that he had complained about the quality of his interpreters. Pearlman v. Pritzker, 4th Cir., No. 13-1563, April 3, 2014 (unpub’d).
Michael Pearlman sued the Secretary of the U.S. Department of Commerce, a department which oversees the National Oceanic and Atmospheric Administration (NOAA). Pearlman, a deaf person, was hired as a program analyst at NOAA in June 2010.
During his tenure there, Pearlman’s request for the services of an interpreter was granted as a reasonable accommodation. However, Pearlman found twelve of the fourteen interpreters – all of whom had been provided by an outside contractor – as substandard, placing them on his personal “do not call” or “black-list.”
In 2010, coworkers complained about Pearlman’s workplace behavior. According to reports provided by the NOAA to the Deputy Director of Workforce Management for NOAA, Pearlman was reported to be “abrupt and demanding,” and was reported to have engaged in interactions with co-workers that were “intimidating, disrespectful, or personally offensive.”
In December 2010, Pearlman was warned about his conduct, and agreed to take action to improve his relationship with coworkers. His behavior failed to improve, and included an incident in which he took a hostile tone in an e-mail to the president of the company providing the interpreters. Pearlman was fired in May 2011, shortly after that incident.
Pearlman sued 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 he took a protected action, suffered an adverse employment action, and that the time period between his complaints and his firing was sufficient to create a causal nexus between the two.
However, the lower court also found that there was a legitimate, nondiscriminatory, and nonpretextual reason for Pearlman’s termination: 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.