I think I said it all.

I am a manager and an employee claimed I retaliated against him. The employee was disciplined for a vehicle accident. I told Him I would consider him for his next progression raise if he accepted responsibility for the accident and had no other violations. I wrote in the interview he would not file a grievance. He asked this to be removed and I removed the statement.

He filed a grievance and I denied the grievance and it went to the next level. He then wrote a 8 page letter challanging the entire investigation of the accident and the re enactment of the accident. In the letter he blamed everyoner else involved for the accident except himself. When it came time for his progression raise I denied the raise. I denied the raise because he accepted no responsibility for the accident as stated in his 8 page letter. It was my opinion he was going to try and win the whole case with his grievance.

The was an audit conducted and the confidential report says the actions I took were retailiation. It goes on to say I did not know they were retaliation an thus the retaliation was unintentional.

My question is, Is it possible for retaliation to be unintentional? Doesn't ther have to be intent and motive involved?

Kevin Hennelly

1 answer  |  asked Jun 2, 2001 12:46 PM [EST]  |  applies to New York

Answers (1)

David M. Lira
Retaliation for What?

The term "retailiation" generally means that an employer essentially punished or otherwise took an adverse action against an employee because the employee exercised a right granted under some statute. There are a lot of statutes that prohibit retaliation, including NY's Workers' Compensation Law, and federal, state and local antidiscrimination laws. Very few of these laws say how someone would prove retaliation. Caselaw under these statutes prohibiting retaliation generally do not require proof of actual knowledge that the employee exercised some right, only that the adverse action took place under circumstances which could lead a trier of fact to conclude that the employer or person taking the adverse action knew or should have known that the employee exercised a protected right. Generally, there has to be some level of proof connecting the adverse action to the exercise of a protected right, although the proof may be circumstantial.

posted by David M. Lira  |  Jun 4, 2001 10:49 AM [EST]

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