Some workplace slights are too trivial to support a discrimination lawsuit

Not everything that management does to you is enough to file an employment discrimination lawsuit. The courts require that the plaintiff show that she suffered an "adverse action" that would make the lawsuit worthwhile. At one end of the spectrum, snide glances at the plaintiff are too trivial for litigation. But the termination of plaintiff's employment certainly is enough.

The case is Sotomayor v. City of New York, decided on April 11. This is a published, precedential opinion. Yet, this brief ruling tells us almost nothing other than that the plaintiff brought a discrimination case that was dismissed by the district court in a thorough opinion that the Second Circuit endorses. To find out what happened in this case, read the district court ruling, at 862 F. Supp. 2d 226 (E.D.N.Y. 2012).

The plaintiff was a New York City school teacher who raised a variety of claims under the discrimination laws. The opening paragraphs of the district court opinion set the tone:

This is one of a growing number of cases where teachers are subject to more frequent and intense classroom observation, checks, directions, and suggestions in an attempt to raise the quality of teaching. Whether the effect here was improvement of teaching quality — or, as plaintiff claims, unnecessary discriminatory and counterproductive stress on a devoted teacher — is not decided. The educational policy involved and its execution have not violated this teacher's rights under federal, New York state, or New York City law.

Beginning in the 2007-2008 school year, plaintiff Gladys Sotomayor, a New York City public school teacher, among other allegedly adverse actions, received increasingly frequent classroom observations, and was given negative performance evaluations and adverse letters in her file, by her supervisors, Principal Fred Walsh and Assistant Principal Jeanette Smith. Defendants insist that Sotomayor was an underperforming teacher who needed this help, critique, and extra supervision. Sotomayor, a Hispanic-American woman over fifty, claims that these actions were the product of age, race, and national origin discrimination.

The district court threw out the case, in part, because plaintiff could not make out any adverse actions. Plaintiff claims that she suffered a variety of slights in the course of her employment. But it is not an adverse action for supervisors to criticize plaintiff in the course of evaluating and correcting her work. While plaintiff was frequently observed in the course of her teaching responsibilities, these observations had no longstanding consequences on the terms and conditions of her employment, i.e., they did not predicate subsequent pay reductions or other penalties. Nor did negative letters to plaintiff's file constitute an adverse action. In addition, "while defendants failed to scrupulously honor each of Sotomayor's teaching preferences, there is no evidence that her assignments were 'materially less prestigious, materially less suited to her skills and expertise, or materially less conducive to career advancement' such that they constitute an adverse employment action." Similarly, plaintiff's undesirable room assignment was not an adverse action since they did not place her in a dingy and cold teaching environment that made it difficult for her to teach.

The moral of the story is that not every slight or inconvenience constitutes an adverse action under the federal civil rights laws. This is among the many reasons that Title VII and ADEA claims are dismissed on a motion for summary judgment. For defense lawyers, keep this in mind in pondering a summary judgment motion. For plaintiff's lawyers, keep this in mind in deciding whether to file the lawsuit.