A Dangerous Job Assignment Can Show Retaliation

By Jeffrey Rhodes September 26, 2022

Takeaway: An employer has discretion in assigning job duties, but assigning an unsafe or disfavored task can be an adverse action for the purposes of proving retaliation. Employers should avoid assigning a particularly unfavorable task to an employee who recently engaged in protected activity. 

An employee who repaired railcars lost a claim that he was assigned dangerous work and suspended as retaliation for testifying on behalf of his brother, who was a co-worker. The appeals court nonetheless said that dangerous work assignments could qualify as retaliation; an assignment wasn't retaliatory in this case because too much time had passed between the testimony and the work assignment.

The plaintiff and his brother worked as carmen for Illinois Central Railroad Co. Before leaving sometime in 2016, the brother filed a charge of discrimination against Illinois Central based on national origin, perceived sexual orientation, race and retaliation, and he filed a lawsuit in July 2017.

The plaintiff was a witness in that lawsuit and testified in a deposition in April 2018. In July 2018, almost three months after his deposition, the plaintiff and his supervisor got into a heated confrontation over unfinished work at the end of the plaintiff's shift. According to the plaintiff, his supervisor grabbed his chest twice, prompting him to tell the supervisor to keep his hands off him. Another employee intervened and separated them.

That night, the supervisor made work assignments for the next day. He assigned the plaintiff to work the RIP track, which can be dangerous because it entails heavy repairs, like railcar wheel replacements that can weigh up to 100 tons if loaded. Most repairs to the RIP track require more than one carman to complete safely, so assignments are typically made in teams of two. That day, the supervisor assigned the plaintiff to work the RIP track alone, according to the plaintiff.

The supervisor later explained that he gave the plaintiff the RIP track assignment because he had an attitude the day before. Illinois Central contended that the plaintiff was not scheduled to work the RIP track by himself; rather, the partner he was teamed with called off work at the last minute. The plaintiff refused the assignment because he thought it was unsafe. He asked a relief supervisor to call his supervisor to ask for a different assignment. His supervisor was unavailable, so the plaintiff spoke with the mechanical manager and told him about the situation.

The mechanical manager suggested that the plaintiff work the speedy track instead, which involved light repairs that one carman could safely do alone. The plaintiff agreed, but that never happened. Instead, during the call, the plaintiff told the mechanical manager about his interaction with the supervisor the day before. The plaintiff gave the telephone to the relief supervisor and left to retrieve his equipment. Before he could start work on the speedy track, the relief supervisor had him write a statement about his confrontation with his supervisor.

The mechanical manager then spoke with the plaintiff again and explained that he was being suspended for being insubordinate by refusing to work the RIP track and speaking disrespectfully to his supervisor. The plaintiff understood the suspension to be indefinite and without pay. Yet the plaintiff returned to work on July 12 after missing two days of work and received backpay to compensate him for his lost wages. It is unclear whether the two days of missed pay actually came out of his wages. At about the same time, a co-worker refused to perform an assignment, and the mechanical manager did not suspend him.

The plaintiff sued Illinois Central for retaliation under Title VII of the Civil Rights Act of 1964 and Illinois law. He alleged that Illinois Central retaliated against him for testifying in his brother's lawsuit by giving him a dangerous work assignment and suspending him. Illinois Central moved for summary judgment, which was granted by the district court, in part finding that the assignment and suspension were not materially adverse actions for retaliation purposes.

The plaintiff appealed to the 7th U.S. Circuit Court of Appeals. The plaintiff argued that the dangerous work assignment and his suspension could qualify as materially adverse actions, and the 7th Circuit agreed. However, the 7th Circuit still found that the claim must be dismissed because the three-month period between the plaintiff's testimony and the adverse actions and the one-year period between his brother's filing of suit and the adverse actions were too long to establish retaliation.

Thus, the 7th Circuit upheld the dismissal of the plaintiff's claims.

Lesiv v. Illinois Central Railroad Co., 7th Cir., No. 21-2496 (July 13, 2022), petition for rehearing denied (Aug. 12, 2022).

Jeffrey Rhodes is an attorney with McInroy, Rigby & Rhodes LLP in Arlington, Va.



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