Summary judgment reversed in Title VII retaliation claim

You win some and you lose some. In this Title VII retaliation case, the plaintiff wins a little, and he loses a little. Along the way, the Court of Appeals confirms that the definition of "adverse employment action" depends on what kind of case you are bringing.

The case is Cunningham v. New York State Department of Labor, a summary order issued on June 10. Among other things, Cunningham alleged that he was discriminated against because of his race. He also alleged that he was retaliated against for complaining about workplace discrimination, minority hiring practices and a prayer breakfast. The district court granted summary judgment. The Court of Appeals (Cabranes, Winter and Sack) revives the retaliation claim.

The discrimination claim fails because Cunningham cannot show an "adverse employment action." Under Title VII, you can't sue over routine workplace grievances. You can only sue over personnel decisions that materially or significantly affect the workplace. The Court of Appeals reminds us that "everyday workplace grievances, disappointments, and setbacks do not constitute adverse employment actions within the meaning of Title VII." Cunningham tries to get around this by pointing to a series of employment decisions that, taken together, constitute adverse employment action:

(1) “unfounded charges of time abuse”; (2) reassignment from a fifth-floor office to a first-floor office, where plaintiff’s staff was located; (3) opposition by Hines to hiring plaintiff’s son in a summer job; (4) discontinuing a training conference organized by plaintiff; and (5) excluding plaintiff from a “Welfare-to-Work” conference and from a decision to hire an outside consultant.

This is an interesting way around the strict "adverse employment action" test. Each of these events, by itself, is not enough. But are five of these events enough to prove "adverse employment action"? The Court of Appeals says no: "In this case, plaintiffs allegations are—each and together—nothing more than everyday workplace grievances. Because plaintiff’s allegations do not, as a matter of law, amount to a materially adverse change in the terms or conditions of his employment, we affirm summary judgment in favor of defendants on the Title VII discrimination claims."

But Cunningham wins his retaliation appeal. In Title VII retaliation cases, the adverse employment action test is more favorable to the plaintiff. Quoting from Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 71 (2006), the Court of Appeals states that "In a retaliation claim, '[w]hether a particular reassignment is materially adverse depends upon the circumstances of the particular case, and should be judged from the perspective of a reasonable person in the plaintiff’s position, considering all the circumstances.'” The Court of Appeals adds, "a retaliation plaintiff must “present evidence sufficient to create a genuine triable issue as to whether the reassignment to which he was subjected could well have dissuaded a reasonable employee in his position from complaining of unlawful discrimination.'”

If you have a retaliation case, being dissuaded from speaking out again is enough to prove "adverse employment action" under Title VII even if the workplace decision that dissuaded you from speaking out again is not enough to bring a discriminatory treatment case. This may be confusing to non-lawyers, but not to the Court of Appeals. In this case, the trial court applied the wrong legal standard. While the trial court applied the "adverse employment action" standard for discrimination cases, it should have applied the "adverse employment action" test for retaliation cases. The case is returned to the trial court to take up this issue under the correct retaliation standard.