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Retail Employment Law Blog

Eighth Circuit Holds Unprofessional Conduct Does Not Amount To Retaliation

By Lisa Baiocchi




The U.S. Court of Appeals for the Eighth Circuit upheld summary judgment for Wal-Mart on a manager’s claim for retaliation, holding the arguably unprofessional conduct she allegedly received while working at the retailer did not amount to adverse action. Chestine Clay was manager of the Vision Center at a Bloomington, Minnesota Wal-Mart. Clay alleged that, after she complained of racial discrimination against her, the store manager showed her disrespect and engaged in conduct that Clay perceived as demeaning toward her. For example, the store manager allegedly failed to provide certain assistance she requested, and excluded her from management meetings.  The Court held this alleged conduct did not meet the legal standard of an adverse employment action, which is “action that would deter a reasonable employee from making a charge of employment discrimination or harassment.” The Court noted that, while the store manager’s conduct may not have made Clay happy, “not everything that makes an employee unhappy is an actionable adverse action.”


Additionally, the court held, even assuming Clay suffered an adverse action, Clay could not show a causal connection between the adverse action and her complaints of discrimination. Some of the store manager’s conduct occurred before Clay had complained of discrimination, so of course her complains could not have caused the adverse conduct. Further, the rest of the store manager’s objectionable conduct occurred well after her discrimination complaints: she complained of discrimination in August 2005, but the store manager’s objectionable conduct occurred in July 2006. The court held that lengthy time period was insufficient evidence of causation to establish a prima facie case of retaliation.


Lessons to Take Away: Employers should investigate and document every incident of alleged wrongful conduct brought to their attention. It is equally important to document performance issues of every employee. Objective evidence that an employee was not performing up to standards prior to engaging in protected activity undercuts the significance of any temporal proximity between that protected activity and a subsequent adverse action.