The case is Chung v. City University of New York, a summary order decided on March 31. Chung got a negative performance evaluation. He also grieves a series of incidents that occurred afterwards. "This latter batch of allegations can essentially be summarized as follows: (1) Plaintiff was required to perform certain low-level tasks that fall outside his job description; (2) student workers were assigned tasks for which Plaintiff was better qualified and that did fall within his job description; (3) Plaintiff was denied access to relevant computer programs, updates, and workshops; and (4) Plaintiff was excluded from, and denied notice of, at least two staff meetings and at least five meetings with student assistants."
None of this will cut it for purposes of taking the discrimination case to the jury. A negative performance review, without more, is not an adverse action unless it has a detrimental effect on the plaintiff's salary, benefits or title. Plaintiff does not claim "tangible consequences resulting from the evaluation." The other things cited by plaintiff in proving an adverse action do not represent a significant diminution in his material job duties, the Court of Appeals (Leval, Straub and Droney) says.
Plaintiff also sued for retaliation for invoking his rights under Title VII. That claim fails also. You can make out this claim if something bad happened to you after you invoked the protections of the civil rights laws. But "where timing is the only basis for a claim of retaliation, and gradual adverse job actions began well before the plaintiff had ever engaged in any protected activity, an inference of retaliation does not arise.” Plaintiff loses because he claims that, after filing a discrimination claim, he "was assigned demeaning work assignments further marginalizing him" at work. The Court reasons:
the specific actions alleged to have occurred after the filing of his discrimination complaint include the assignment of low-level tasks and the denial of certain opportunities that were instead afforded to student workers. These allegations are similar to the ones that pre-dated the December 2009 Notice of Claim, and, even where they differ, Plaintiff expressly characterizes them as a furtherance of the earlier discrimination. That Defendants allegedly continued reducing Plaintiff’s responsibilities and denying him access to resources and training after he filed a discrimination complaint cannot support an inference that the later-in-time actions were motivated by retaliatory intent.