What is “materially adverse” when establishing a retaliation claim?

By Bryan A. Chapman, Esquire

Retaliation is the most common workplace discrimination complaint filed with the Equal Employment Opportunity Commission (EEOC). Generally, retaliation occurs when a worker complains about workplace discrimination and is then targeted by his or her employer for harsher treatment.

Three elements of a prima facie retaliation case.

The Supreme Court expanded the scope of retaliation in Burlington N. & Santa Fe Rwy. Co. v. White, 548 U.S. 53 (2006).  To establish a claim for retaliation, a plaintiff must show:

1)         they engaged in protected activity;

2)         the defendant took action that would be “materially adverse to a reasonable employee or job applicant”; and,

3)         there is a causal connection between the protected activity and the asserted adverse action.

What does “materially adverse” mean?

Materially adverse means harmful enough to “dissuade a reasonable worker from making or supporting a charge of discrimination.”  Burlington, 548 U.S. 68.

Suspending supervisory responsibilities or significantly reducing responsibilities.

A suspension, demotion, or termination can be materially adverse.  However, taking away an employee’s supervisor duties or significantly reducing their responsibilities can also be materially adverse for the purpose of establishing a retaliation claim. Czekalski v. Peters, 475 F.3d 360, 364 (D.C.Cir.2007) (“[W]ithdrawing an employee’s supervisory duties … constitutes an adverse employment action.” (quoting Stewart, 352 F.3d at 426) (internal quotation marks omitted)); id. at 365 (observing that “reassignment… with significantly diminished responsibilities” would constitute an adverse employment action); Kessler v. Westchester County Dep’t of Soc. Serv., 461 F.3d 199 (2d Cir. 2006); Davis v. City of Sioux City, 115 F.3d 1365 (8th .Cir. 1997)

Reprimand or negative job performance evaluation.

A reprimand or negative job performance evaluation can be materially adverse. Nye v. Roberts, No. 03-1683, (4th Cir. 2005) (unpublished) (In this case, however, the evidence is such that a reasonable jury could find that, in the context of the Board’s system of progressive discipline, the reprimand and performance evaluation resulted in a material change in Nye’s employment status.); Kim v. Nash Finch Co., 123 F.3d 1046 (8th Cir. 1997) (“…he received much lower performance evaluations than he had received before filing his employment discrimination charge…  There was also evidence that Nash Finch had ‘papered’ his personnel file with negative reports, including two written reprimands.”)

Pursuing false criminal charges.

Pursuing false criminal charges against an employee can be materially adverse. Burlington N. & Santa Fe Rwy. Co. v. White, 548 U.S. 53 (2006) (“An employer can effectively retaliate against an employee…Berry v. Stevinson Chevrolet, 74 F. 3d 980, 984, 986 (CA10 1996) (finding actionable retaliation where employer filed false criminal charges against former employee who complained about discrimination).”; Berry v. Stevinson Chevrolet, 74 F.3d 980 (10th Cir. 1996) (“Other courts concluding that Title VII extends to former employees have held that the filing of charges can constitute the requisite adverse action.”); Beckham v. Grand Affair of NC, Inc., 671 F.Supp. 415 (W.D.N.C. 1987)

Creating or perpetuating a hostile work environment.

Retaliatory harassment can constitute an adverse employment action. Von Gunten v. Maryland, 243 F.3d 858, 865 (4th Cir. 2001); Noviello v. City of Boston, 398 F.3d 76 (1st Cir. 2005) (“The weight of authority supports the view that, under Title VII, the creation and perpetuation of a hostile work environment can comprise a retaliatory adverse employment action under 42 U.S.C. § 2000e-3(a).  See, e.g., Von Gunten v. Maryland…”).

Law Office of Bryan A. Chapman

Contact:

Bryan A. Chapman, Esquire

(202) 508-1499

bchapman@baclaw.com

www.baclaw.com

Join Facebook group: I Need A Discrimination Lawyer

Retaliation: Surviving the Employer’s Accusation of Poor Performance or Misconduct.

By Bryan A. Chapman, Esquire

In a workplace, retaliation occurs when an employee complains about or opposes discrimination and is then subject to harsh treatment, such as, harassment or termination.  The harsh treatment must be a direct result of the employee’s complaint about or opposition to discrimination.  In other words, “but for” his or her complaint or opposition, the employee would not have been subject to harsh treatment.

The Supreme Court expanded the scope of retaliation in Burlington N. & Santa Fe Rwy. Co. v. White, 548 U.S. 53 (2006).  To establish a prima facie claim for retaliation, a plaintiff must show:

1)       they engaged in protected activity;

2)       the defendant took action that would be “materially adverse to a reasonable employee or job applicant”; and,

3)       there is a causal connection between the protected activity and the asserted adverse action.

Materially adverse means harmful enough to “dissuade a reasonable worker from making or supporting a charge of discrimination.”  Burlington, 548 U.S. 68.

To protect itself against a retaliation claim, an employer may accuse an employee, who has a long history of satisfactory job performance, of being a bad employee.  By accusing the employee of poor job performance or misconduct, the employer creates a non-retaliatory excuse for its retaliatory conduct. 

If the employer can advance a non-retaliatory explanation for its action, the employee’s retaliation claim may not meet the “but for” standard and be subject to dismissal by an administrative agency or court.  To counter this, an employee must demonstrate that the employer’s excuse is not believable or mere pretext for retaliatory conduct.

An opportunistic employer may simply wait for an opportunity to accuse the employee of poor performance or misconduct.  However, this ploy may not always succeed. Hamilton v. General Electric, 556 F.3d 428 (6th Cir. 2009) (We have held that when an “employer . . . waits for a legal, legitimate reason to fortuitously materialize, and then uses it to cover up his true, longstanding motivations for firing the employee,” the employer’s actions constitute “the very definition of pretext.”)  An employee who complains about or opposes discrimination should anticipate retaliation and not let their guard down.

Management may conspire against the employee or solicit complaints from the employee’s co-workers.  Under these circumstances, new accusations of poor performance or misconduct may seem contrived. Brady v. Office of Sergeant at Arms, 520 F.3d 490, 496 (D.C. Cir. 2008) (“[t]he question is not whether the underlying…incident occurred; rather, the issue is whether the employer honestly and reasonably believed that the underlying…incident occurred”)  An employee should document his or her experience in the workplace and identify potential witnesses.

If you believe your employer is retaliating against you, seek the advice of an experienced civil rights attorney as soon as possible.

Law Office of Bryan A. Chapman

Contact:

Bryan A. Chapman, Esquire

(202) 508-1499

bchapman@baclaw.com

www.baclaw.com

Join Facebook group: I Need A Discrimination Lawyer

What is “materially adverse” when establishing a retaliation claim?

Three elements of a prima facie retaliation case.

The Supreme Court expanded the scope of retaliation in Burlington N. & Santa Fe Rwy. Co. v. White, 548 U.S. 53 (2006).  To establish a claim for retaliation, a plaintiff must show:

1)         they engaged in protected activity;

2)         the defendant took action that would be “materially adverse to a reasonable employee or job applicant”; and,

3)         there is a causal connection between the protected activity and the asserted adverse action.

What does “materially adverse” mean?

Materially adverse means harmful enough to “dissuade a reasonable worker from making or supporting a charge of discrimination.”  Burlington, 548 U.S. 68.

Suspending supervisory responsibilities or significantly reducing responsibilities.

A suspension, demotion, or termination can be materially adverse.  However, taking away an employee’s supervisor duties or significantly reducing their responsibilities can also be materially adverse for the purpose of establishing a retaliation claim. Czekalski v. Peters, 475 F.3d 360, 364 (D.C.Cir.2007) (“[W]ithdrawing an employee’s supervisory duties … constitutes an adverse employment action.” (quoting Stewart, 352 F.3d at 426) (internal quotation marks omitted)); id. at 365 (observing that “reassignment… with significantly diminished responsibilities” would constitute an adverse employment action); Kessler v. Westchester County Dep’t of Soc. Serv., 461 F.3d 199 (2d Cir. 2006); Davis v. City of Sioux City, 115 F.3d 1365 (8th .Cir. 1997)

Reprimand or negative job performance evaluation.

A reprimand or negative job performance evaluation can be materially adverse. Nye v. Roberts, No. 03-1683, (4th Cir. 2005) (unpublished) (In this case, however, the evidence is such that a reasonable jury could find that, in the context of the Board’s system of progressive discipline, the reprimand and performance evaluation resulted in a material change in Nye’s employment status.); Kim v. Nash Finch Co., 123 F.3d 1046 (8th Cir. 1997) (“…he received much lower performance evaluations than he had received before filing his employment discrimination charge…  There was also evidence that Nash Finch had ‘papered’ his personnel file with negative reports, including two written reprimands.”)

Pursuing false criminal charges.

Pursuing false criminal charges against an employee can be materially adverse. Burlington N. & Santa Fe Rwy. Co. v. White, 548 U.S. 53 (2006) (“An employer can effectively retaliate against an employee…Berry v. Stevinson Chevrolet, 74 F. 3d 980, 984, 986 (CA10 1996) (finding actionable retaliation where employer filed false criminal charges against former employee who complained about discrimination).”; Berry v. Stevinson Chevrolet, 74 F.3d 980 (10th Cir. 1996) (“Other courts concluding that Title VII extends to former employees have held that the filing of charges can constitute the requisite adverse action.”); Beckham v. Grand Affair of NC, Inc., 671 F.Supp. 415 (W.D.N.C. 1987)

Creating or perpetuating a hostile work environment.

Retaliatory harassment can constitute an adverse employment action. Von Gunten v. Maryland, 243 F.3d 858, 865 (4th Cir. 2001); Noviello v. City of Boston, 398 F.3d 76 (1st Cir. 2005) (“The weight of authority supports the view that, under Title VII, the creation and perpetuation of a hostile work environment can comprise a retaliatory adverse employment action under 42 U.S.C. § 2000e-3(a).  See, e.g., Von Gunten v. Maryland…”).

 

Bryan A. Chapman, Esquire

www.baclaw.com