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An Employee Cannot Claim Retaliation if His Employer Didn’t Know About the Protected Activity.

On January 9, 2014, the United States District Court for the Eastern District of Pennsylvania decided that an employee cannot succeed on a retaliation claim if the employer did not know about the alleged protected activity of his employee at the time he decided to terminate him.

This case, McElroy v. Sands Casino, was initiated by Plaintiff who filed an FMLA-interference claim and retaliation claim as well as breach of contract claim. The Plaintiff worked for Defendant as a dealer at Sands Casino for approximately 18 months. Plaintiff had a history of behavioral issues with his colleagues and had been “disciplined for inappropriate comments to a female coworker regarding a massage, for ordering alcohol at the casino while in uniform contrary to policy, and for making rude comments to another dealer who had chips stolen from his table”. Plaintiff also had some attendance issues. In this case, Plaintiff submitted his request for FMLA leave, which may have been related to head pain or diverticulitis, to Human Resources. In accordance, with their usual practice, Human Resources did not tell anyone about the Plaintiff’s inquiry. As it turned out, Plaintiff’s inquiry was not complete and was sent back to him because he needed to submit some more information – which he never did. Shortly thereafter, Plaintiff was terminated after his employer investigated an incident involving another dealer, related to a sexual harassment claim, and due to Plaintiff’s history of behavioral issues.

Moreover, Defendant issued an employee handbook to all of its employees containing several general statements and disclaimers. The handbook made it clear that employment shall continue only so long as it is mutually agreeable to the Team Member and the Company. The handbook also contained a policy allowing employees who were disciplined or terminated to request for a peer review appeal. In this case, Plaintiff requested a peer review of his termination but Defendant denied him this right because he was terminated on the grounds of sexual harassment (this was expressly stated as an exception to the right to request a peer review). Plaintiff claimed that his termination was in retaliation of his FMLA leave inquiry. However, the court disagreed, and dismissed the FMLA-retaliation claim stating that:

“but there surely can be no causal relationship between an FMLA request and a termination, and any temporal proximity cannot be considered suggestive, if the party making the termination decision had no knowledge of the FMLA request…. Here, none of the individuals involved in Plaintiff’s termination knew about his FMLA inquiry…. The record indicates that only Berasley knew about Plaintiff’s FMLA inquiry, and she has declared, “As is my practice with all questions regarding FMLA leave, I did not tell anyone in the Human Resources department or any of Mr. McElroy’s managers about his inquiry.” Nothing in the record could support a jury’s determination that anyone else knew; therefore, the retaliation claim fails as a matter of law.”

If you are an employee and you believe you have been discriminated against and/or retaliated against, please contact the Harman Firm, LLP.

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