Tips For Employers To Avoid Retaliation Claims In Light Of Burlington Northern - ABA YLD 101 Practice Series

By Alyesha P. Asghar

In Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53 (2006), the Supreme Court redefined what is required for an employee to establish a “materially adverse” employment action.  Specifically, the Supreme Court distinguished between Title VII’s basic anti-discrimination section, 703, and its anti-retaliation section, 704.  Id.at 61 – 62.  According to the new standard, conduct is “materially adverse” when it “well might have dissuaded a reasonable worker from making or supportinga charge of discrimination.”  Id.at 77.

For employers to operate within the parameters of the new standard, they must be aware of the following factors that the Supreme Court articulated in Burlington Northern:

  • Suspect actions need not be employment related: While Title VII’s anti-discrimination section, 703, prohibits discrimination which relates to conditions of employment, the anti-retaliation section, 704, is not so limited.  Therefore, employers should be aware that actions can be considered retaliatory even though they do not affect employment terms and conditions.  Succinctly, while Title VII forbids discrimination based on whom people are (their sex, race, national origin, etc.), it forbids retaliation based on what people do (filing an EEOC charge or complaining to management).  Gomez-Perez v. Potter, 128 S.Ct. 1931, 1945 (2008).

For example, in Rochon v. Gonzales, 438 F.3d 1211 (D.C.Cir. 2006),   following the settlement of an EEOC claim involving an FBI agent, the FBI refused, contrary to policy, to investigate a death threat against the agent and his wife.  The court found that even though there was “no diminution in pay or benefits,” this action could constitute retaliation under Title VII.  Id.at 1216. 

In Berry v. Stevinson Chevrolet, 74 F.3d 980 (10th Cir. 1996), the former employee – a used car salesperson – filed an EEOC charge against his former employer.  The defendants then encouraged the prosecution of baseless criminal charges against the former employee, allegedly in retaliation for the filing of EEOC charges.  Id. at 986.  The Tenth Circuit held that an adverse action need not be integrally connected with the employment relationship to constitute retaliation.  Id.As such, the Tenth Circuit held that false criminal charges filed against the former employee constituted retaliation.

  • Suspect actions need to be materially adverse:  The anti-retaliation provision covers only those employer actions that could be considered “materially adverse” to the employee.  Because the standard articulated by the Supreme Court requires a retaliation plaintiff to show that the challenged action “well might have ‘dissuaded a reasonable worker from making or supporting a charge of discrimination,’” Rochon, 438 F. 3d at 1219,  there must be evidence of “something more disruptive than a mere inconvenience or an alteration of job responsibilities” to constitute retaliation.  Crews v. City of Mt. Vernon, 567 F.3d 860, 869 (7th Cir. 2009) (internal citations omitted).

For example, in Greer v. Paulson, an Internal Revenue Service (“IRS”) employee was scheduled to return to her job at the IRS upon the conclusion of her over one year temporary work assignment at the White House. 505 F.3d 1306, 1309 (C.A.D.C. 2007).   Instead of returning to her original position at the expiration of the temporary assignment, she requested one month's annual or sick leave and a transfer within the IRS.  Id.at 1309.  Her requests were denied, and the employee did not return to work.  Her status was designated as absent without leave (“AWOL”).  Id.The court found that the former employee, who demonstrated that she experienced a demonstrable “effect” involving “objectively tangible harm” as a result of the AWOL letter, met the test for a materially adverse action.  Id.at 1317.  Specifically, the employee testified that the AWOL status caused her serious hardship because the designation made it difficult for her to receive her employment benefits and jeopardized her ability to get another job.  Id.at 1318.  The employee also demonstrated that she had to borrow money for the education and therapy of her disabled child.  Id.  Finally, the employee submitted a letter regarding her personal bankruptcy and two real estate foreclosures of her rental properties.  Id.  

Grosso v. Federal Exp. Corp., 467 F.Supp.2d 449, 452 (E.D.Pa. 2006), provides another example of a materially adverse action where a FedEx courier who took intermittent FMLA leave to care for his father complained that his employer treated him unequally in the workplace.  Specifically, the FedEx courier was reassigned to a less desirable route that he considered a “back buster”, and which was usually assigned to less senior employees.  Id.at 453 – 454.  The court found that this reassignment to a less desirable route where employee also had to drive “the worst truck in the station” constituted a materially adverse employment action.  Id.    

Consequently, even a reassignment of duties can constitute a materially adverse employment action where both the former and present duties fall within the same job description when the action results in the employee performing some duties that are less desirable than others.  548 U.S. 53.  If the new job duties are dirtier, harder, less prestigious, and perceived by other employees as being worse or less desirable, the new work assignment can be considered “materially adverse.”  Id.  

  •   Suspect actions are weighed by the standard of a reasonable person:  Whether a schedule change or reassignment is materially adverse depends on the circumstances of the employee.  See Burlington Northern, 548 U.S. at 69.  The Burlington Northern court adopted an objective standard, so an individual employee's “unusual subjective feelings” will not be relevant.  Id.   The focus is on the materiality of the employer's action and “the perspective of a reasonable person in the plaintiff's position.”  Id.at 71 (emphasis added).  Reasonable employees, in other words, are thick skinned individuals.  Deborah L. Brake & Joanna L. Grosman, The Failure of Title VII as a Rights-Claiming System,86 N.C. L. Rev. 859, 908 (2008). 

The Court in Burlington Northern illustrated this standard through the use of the following examples: Even though a supervisor's refusal to invite an employee to lunch is normally a trivial, non-actionable petty slight, exclusion from a weekly training lunch that contributes significantly to the employee's professional advancement might well deter a reasonable employee from complaining about discrimination.  Burlington Northern, 548 U.S. at 69.    Similarly, a schedule change in an employee's work may matter enormously to a young mother with school age children.  Id. 

Based upon this standard, the court in Cruz v. Liberatore held that a transfer that affects a parent's ability to spend time with and care for a child is the type of employment action that “‘could well dissuade a reasonable worker from making or supporting a charge of discrimination.’”  582 F. Supp. 2d 508, 523-24 (S.D.N.Y. 2008) ( quoting Burlington Northern, 538 U.S. at 57)) ( cited in Delaney v. LaHood, 2009 WL 3199687, 21 (E.D.N.Y. 2009); but see Sibilia v. Snow, No. 05-10096, 2006 WL 2990479, at *7 (D. Mass. Oct. 20, 2006) (a denial of transfer which resulted in an increased commuting time was not materially adverse). 

In the wake of the Burlington Northern decision, attorneys should counsel their clients to make special efforts to implement and enforce workplace guidelines that prohibit any form of retaliation.  See Tori L. Winfield, Retaliation: Employers Had Better Watch Their Backs: Burlington Northern & Santa Fe Railway Company v. White, 80 Fla. B.J. 53, 55 (2006) (cited in Lena P. Ryan, Expanding the Scope of the Expansive Approach: The Burlington Northern Standard as a Per Se Approach to Federal Anti-Retaliation Law,   49 Ariz. L. Rev. 745, 773 (Fall 2007).  Based on these policies, employers should train supervisors and employees on non-retaliation policies, and consider severely disciplining or discharging those who retaliate against other employees.  Winfield at 754-55.  Employers will also benefit from making special efforts to review, internally and with counsel any action to be taken with respect to employees who have participated in protected activities, such as opposing or refusing to take part in conduct they deem unlawful, filing a charge, making an internal complaint, or participating in an investigation.  See Ryan at 754 – 755; see Donati & Tarnow, at 665-66.  To avoid potential liability, attorneys must counsel their clients to be even more vigilant in basing their employment actions on legitimate, non-discriminatory, non-retaliatory reasons.

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About the Author

Alyesha P. Asghar is an attorney with Spilman Thomas & Battle, PLLC in Charleston, West Virginia.  She practices in the areas of labor and employment law and litigation.

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