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Cook reinstated after successful EEO claim can’t show later ‘retaliatory’ incidents were materially adverse

By Kathleen Kapusta, J.D.

The 11 incidents of alleged retaliation by a federal agency and two supervisors against a cook—after he had been reinstated to his job following a successful EEO complaint—were not materially adverse actions, the Seventh Circuit ruled, affirming summary judgment against his Title VII claim. Some of the incidents were isolated and minor and did not involve any discipline. And while one may have involved an implicit threat of discipline, the court noted “ample precedent … that an adverse action in the Title VII retaliation context must produce a material injury or harm, and that unfulfilled threats do not meet that standard” (Lewis v. Wilkie, November 29, 2018, Manion, D.).

Terminated in September 2009 after approximately nine months, the Veterans Affairs employee filed an EEOC complaint alleging race and age discrimination, retaliation, and a hostile work environment. He was reinstated to his previous position in December 2013 after an administrative law judge found in his favor on his retaliation claim. After his reinstatement, he alleged that his supervisors (the same supervisors who had requested and recommended his termination) along with the agency engaged in unlawful retaliation for his 2009 EEO complaint. He ultimately requested and received a transfer to a different department in April 2015.

Alleged retaliation by agency. In his lawsuit against the agency, he claimed 11 incidents of retaliation. The agency itself, he asserted, failed to provide him with a locker upon his return to work; did not timely provide him with a paycheck on the first regularly scheduled payroll date after his reinstatement; and improperly reduced his pay rate.

Alleged retaliation by supervisors. As to his supervisors, he claimed that one gave him unwarranted counseling about organizing the freezer; required him to come in early to cover a coworker’s shift and scolded him for leaving “early” when he left at the end of that shift; instructed him to follow the sign-out procedure without first checking to see if he was complying; questioned him regarding his whereabouts when he used the restroom; and required that a witness be present before meeting with him to deny his request for administrative leave.

The second supervisor, he claimed, instructed coworkers to monitor his whereabouts and instructed another to gather negative information about him. Finally, he claimed that a 60-day performance review he was required to sign was retaliatory because it was labeled as a “probationary evaluation.”

Lower court proceedings. Granting summary judgment against his Title VII retaliation claim, the district court found that none of the alleged retaliatory actions constituted a materially adverse action. It also found that he failed to establish causation for 10 of the incidents; failed to identify any similarly situated comparator; and failed to show pretext.

No materially adverse action. Agreeing with the lower court, the Seventh Circuit observed that with respect to the alleged retaliation by the agency—failure to provide a locker, delayed paycheck, and short paycheck—these were simply isolated administrative errors that were resolved and, although frustrating, did not cause lasting harm or injury sufficient to dissuade a reasonable employee from engaging in protected activity.

As to the incidents involving the first supervisor, while four amounted to the employee being falsely accused or receiving unneeded instructions, he received no further discipline and did not suffer any lasting detriment from any of them. Although he claimed he was reprimanded and threatened with discipline when he left “early” following alteration of his work schedule to cover for his coworker, there was no evidence he was actually disciplined. And while the requirement that a witness be present during his conversation with his supervisor about his administrative leave request was directly linked to his 2009 EEO activity—his supervisor claimed the employee’s 2009 EEO complaint falsely accused him of lying and he wanted a witness to protect himself—the purpose of the meeting was simply for the supervisor to convey to the employee that his leave request was denied. Those facts, said the court, did not present a circumstance in which the witness requirement would dissuade a reasonable employee from exercising his rights.

Implicit threat of discipline. Turning to the employee’s allegation that the second supervisor instructed coworkers to monitor him, there was no substantial factual support for this claim, and even if the monitoring did occur, there was no evidence it caused him harm or injury. As to his allegation that his supervisor instructed a coworker to solicit negative information about him and that he did so for a period of 30 days, the employee argued that the district court applied the wrong standard when it found that the facts showed at most an implicit threat of discipline that never materialized.

Here, the court found that even setting aside the cases cited by the lower court, there was ample Seventh Circuit and Supreme Court case law supporting the proposition that an adverse action in the Title VII retaliation context must produce a material injury or harm, and unfulfilled threats do not meet that standard. The district court correctly determined that the alleged conduct constituted, at most, an implicit threat of future discipline, but resulted in no injury or harm greater than stress and worry, and thus did not constitute an adverse action. “While this kind of unfulfilled threat of discipline ‘may well be relevant evidence of retaliatory intent behind a more concrete adverse action,’ it does not constitute a materially adverse action in and of itself,” said the court.

Performance review. Nor was the 60-day performance review a materially adverse action. Not only was it positive, it was a standard company requirement for employees in new positions and did not result in any injury or harm.

Proper standard. As to the district court’s holding that the employee also failed to demonstrate a causal link between his protected activity and the alleged retaliatory actions, failed to identify any similarly situated employee, and failed to show pretext, the employee argued that not only were these conclusions wrong, the court confused the direct and indirect methods of proof by requiring him to identify a similarly situated employee and demonstrate pretext rather than separately analyzing his claim under the direct method of proof, which requires neither. Although it affirmed the district court on the dispositive issue that none of the alleged retaliatory actions constituted a materially adverse action, and did not need to reach an analysis of the other issues, the appeals court nonetheless pointed out that the employee’s argument was a misrepresentation of the district court’s opinion and a misunderstanding of its holding in Ortiz.

The lower court very clearly set forth the circuit’s case law regarding the two methods, and then followed Ortiz’s directive to analyze the evidence as a whole to determine “whether the evidence would permit a reasonable factfinder to conclude that the plaintiff’s [protected activity] caused the … adverse employment action,” said the appeals court, affirming the decision of the court below.