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If An Employee Engages In More Protected Activity After An Employer Takes Some Action Against Him or Her, Is The Employer’s Action Materially Adverse?

June 19, 2013

Our paper addresses this interesting question.

An employer’s actions are “materially adverse” – and thus actionable as retaliation – if they are “harmful to the point that they could well dissuade a reasonable worker from making or supporting a charge of discrimination.” Burlington N. & Santa Fe Ry. v. White, 548 U.S. 53, 57 (2006). While the standard is sensitive to the particular circumstances of each case, it prescribes an objective inquiry that does not turn on a plaintiff’s personal feelings about those circumstances. Id. at 68-69. Each case is “judged from the perspective of a reasonable person in the plaintiff’s position, considering all the circumstances.” Id. at 71.

In Bush v. Regis Corp., 257 Fed. Appx. 219, 222 (11th Cir. 2007) and DeHart v. Baker Hughes Oilfield Operations, Inc., 214 Fed. Appx. 437, 441-42 (5th Cir. 2007), the Courts of Appeals determined that the plaintiffs had not shown that the challenged allegedly retaliatory actions (written warnings) might dissuade a reasonable employee from filing a charge in part because the plaintiffs had not in fact been deterred from subsequently filing charges of discrimination. Therefore, in each case the allegedly retaliatory actions were found not to be materially adverse, so the plaintiffs could not bring suit based upon them. Some other courts have endorsed this logic in dismissing retaliation claims for failure to satisfy the “materially adverse” standard. See, e.g., Kent v. Vicksburg Healthcare, LLC, NO. 5:10-CV-195 DCB-RHW, 2012 WL 1556511, at *11 (S.D. Miss. Apr. 30, 2012) (“It is clear that the written warnings, whatever their effect, did not deter Kent from making claims of discrimination and therefore Kent cannot make out her prima facie case because the written warnings do not rise to the level of an adverse employment action.”); Johnson v. Watkins, 803 F. Supp. 2d 561, 570-71 (S.D. Miss. 2011) (“In the present case, many of the disputed incidents, even assuming they occurred as Johnson described them, would be nothing more than petty slights that would not dissuade a reasonable worker from making a complaint. In fact, none of them had that effect on Johnson – she filed her Charge of Discrimination after the final disputed incident.”); Baloch v. Norton, 517 F. Supp. 2d 345, 356 (D.D.C. 2007) (“As the plaintiff filed four additional administrative complaints between August and November 2003, he can hardly maintain that the leave restrictions deterred him from exercising his rights.”).

However, the logic of these cases was rejected in Turrentine v. United Parcel Service, Inc., 645 F. Supp. 2d 976 (D. Kan. 2009). As the court stated in that case:

As plaintiff aptly points out, however, every plaintiff asserting a claim of retaliation has, by virtue of Title VII’s exhaustion requirements, necessarily filed a charge of discrimination concerning the allegedly retaliatory act. To suggest, then, that a plaintiff’s filing of a charge of discrimination precludes a finding that a reasonable person might be dissuaded from filing a charge of discrimination defies logic. While the court leaves open the possibility that circumstances might exist in which a particular plaintiff’s pursuit of his or her remedies might be relevant to a finding of whether a challenged action is materially adverse, see Somoza v. University of Denver, 513 F.3d 1206, 1214 (10th Cir. 2008) (stating, in dicta, without citation, that “the fact that an employee continues to be undeterred in his or her pursuit of a remedy … may shed light as to whether the actions are sufficiently material and adverse to be actionable”), defendant has not persuaded the court that those circumstances are present here.

Id. at 989-90. See also Chowdhury v. Bair, 604 F. Supp. 2d 90, 97 (D.D.C. 2009) (stating that the standard is whether a reasonable person would be dissuaded from engaging in protected activity, whether or not the plaintiff was); LeBlanc v. Greater Baton Rouge Port Com’n, 676 F. Supp. 2d 460, 475 n. 49 (M.D. La. 2009) (distinguishing DeHart on the basis that the court there “did not merely rely on the fact that the plaintiff filed a charge of discrimination several weeks after the written warning” in finding that no materially adverse action had been taken against the plaintiff).