Sometimes retaliation isn’t loud. There’s no demotion, no firing, no pay cut. It shows up quietly instead – more work than everyone else gets, repeated just often enough to send a message.
That kind of retaliation can be harder to spot, but as a recent decision out of the District of Columbia shows, it can still land an employer in serious trouble.
TL;DR: After a jury verdict, a federal court refused to undo a retaliation finding where a supervisor assigned an employee a disproportionate share of onerous “on-call” duty weeks following protected activity. Extra workload can qualify as materially adverse even if nothing dramatic happens during the assignment.
📄 Read the court’s decision here
When “on-call” isn’t just part of the job
The employee worked in a role that required periodic “duty weeks” – being on call 24/7, restricted in travel, and responsible for responding to emergencies. Nobody loved those weeks, but they were supposed to rotate evenly among the team.
After engaging in protected activity, that rotation broke down. Over a relatively short period, the employee was assigned four duty weeks in a 12-week span, even though the normal rotation was roughly one duty week every eight weeks. The result was less personal freedom, more stress, and far more disruption than her colleagues experienced.
The employer insisted this was no big deal. Duty weeks were part of the job. The assignments were temporary. And nothing serious happened while the employee was on call.
A jury disagreed. So did the court.
How “adverse” is adverse, anyway?
After the verdict, the employer asked the court to step in and erase the retaliation finding, arguing that extra workload alone isn’t enough to qualify as retaliation.
The court rejected that argument.
For retaliation purposes, an action is materially adverse if it might dissuade a reasonable employee from engaging in protected activity. That standard does not require termination, demotion, or a pay cut. Work assignments can qualify when they meaningfully burden an employee’s time, freedom, or quality of life.
Here, the evidence showed that duty weeks:
- Required 24/7 availability
- Restricted travel and off-duty activities
- Added responsibility on top of regular job duties
- Carried the potential for responding to serious emergencies
Assigning more of those weeks to one employee than others was enough for a reasonable jury to find retaliation.
Why “nothing bad happened” didn’t save the employer
The employer also argued that nothing significant actually occurred during the extra duty weeks. According to the defense, the employee responded to no major emergencies and, at most, received a single phone call.
That missed the point.
The court explained that retaliation occurs when the assignment is made, not when something bad happens. The burden, the restriction, and the message sent to the employee are what matter. An employer cannot avoid liability simply because the worst-case scenario never materialized.
Where the defense really fell apart
The employer also claimed the duty weeks were assigned neutrally and consistent with past practice.
But the jury heard conflicting evidence about how the rotation was supposed to work, how often others were assigned duty weeks, and why this employee’s schedule suddenly changed. Those were credibility questions, and credibility determinations belong to the jury. The court refused to second-guess that call.
Employer takeaways
Employers should take several lessons from this decision:
First, workload can be retaliation. Extra assignments, undesirable shifts, and temporary burdens can qualify if they meaningfully affect an employee and follow protected activity.
Second, visible harm is not required. The question is whether the action could deter a reasonable employee from speaking up, not whether disaster actually struck.
Third, rotation systems live or die on consistency. If assignments are supposed to rotate, they must actually rotate. Deviations need legitimate, documented explanations.
Finally, informal punishment is still punishment. Courts and juries are increasingly skeptical of retaliation that hides behind “just part of the job.”
Bottom line
Retaliation claims don’t always come wrapped in dramatic employment actions. Sometimes they’re buried in schedules, assignments, and seemingly minor workload decisions.
And those are often the hardest ones to defend.