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Home - The Management Association
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“Tension” Does not Constitute Retaliation
by Kelly A. Hayden, JD, Assistant General Counsel
Published Aug 30, 2010
An employee filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) in August of 2006. In September of 2007, she received a written warning for improperly varying her schedule contrary to company policy. In October of 2007, the employee varied her schedule again, without proper authorization, and received corrective action. The employee alleged that the corrective action was in retaliation for filing the initial charge with the EEOC.
In court, the employee conceded that the corrective action did not rise to the level of an “adverse employment action.” The United States Court of Appeals for the Seventh Circuit (covering Illinois, Indiana and Wisconsin) has previously ruled that unless an “unfair” reprimand or negative performance evaluation is accompanied by a tangible job consequence, it does not constitute adverse action and will not meet the test for retaliation. (The employee received “corrective action” but did not suffer a loss in pay, days off, a loss of a raise, etc.).
However, the employee argued that she did suffer “palpable tension” following her filing of the EEOC charge and that this, combined with the corrective action, constituted an adverse employment action. The Court dismissed this argument stating that the employee’s “subjective determination of tension in the workplace, without more” does not constitute retaliation. The Court also pointed out the employee’s difficulties in establishing a causal link between her protected activity and any adverse employment action, primarily due to the lack of “temporal proximity.” (Her charge was filed in August of 2006, yet she claimed the retaliation occurred in October of 2007). Normally, a court is looking for the adverse employment action to occur more closely in time to the protected activity. See Jones v. Res-Care, Inc. Case No. 09-3076, July 16, 2010 (7th Cir.).
