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 Nye v. Roberts, No. 03-1683, (4th Cir. 2005) (unpublished) (In this case, however, the evidence is such that a reasonable jury could find that, in the context of the Board’s system of progressive discipline, the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

 

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