Some believe that once an employee complains to the EEOC, discipline must stop. Supervisors must tread lightly. Performance problems must be ignored.
In Andrews v. DeJoy, the court affirmed summary judgment for the Postal Service on a retaliation claim brought by a clerk who had a long history of documented performance problems — both before and after she filed an EEOC complaint.
After loudly clashing with her supervisor and being escorted from the building by police, the employee, a clerk, filed an EEOC charge. After her post-suspension return to work, management continued documenting attendance issues, insubordination, and performance deficiencies, eventually issuing a notice of removal (later reduced to a suspension through arbitration).
She sued, claiming retaliation. She lost.
Retaliation requires proof of causation — not just timing, suspicion, or hurt feelings. Here, the record showed:
🗒️ Documented performance issues before the EEOC complaint
🗒️ Similar discipline before and after the complaint
🗒️ No change in expectations or standards
🗒️ No evidence of a retaliatory scheme
The employee leaned on the idea of “heightened scrutiny,” citing a prior 4th Circuit case in which an employer actually plotted to scrutinize an employee into termination. But this wasn’t that case. There was no plan, no manipulation, no manufactured misconduct. Just ongoing performance problems that the employer accurately documented.
Employees are not insulated from discipline because they complain. Employers may continue enforcing rules, documenting performance, and imposing consequences, so long as they do so consistently and honestly.
This case is a reminder of a simple truth: When documented discipline predates the protected activity, it’s hard to claim that the latter was in retaliation for the former.
Document well. Apply standards evenly. And don’t confuse protected conduct with job protection. The two concepts are mutually exclusive.
