Managerial outburst following discrimination complaint is not retaliation

Not everything bad that happens at work is an adverse employment action allowing you to sue for discrimination under Title VII or the other employment discrimination laws. This case drives that point home.

The case is Dickens v. Hudson Sheraton Corp., a summary order decided on May 4. Plaintiff brings a retaliation claim. He says that after he participated in a union-sponsored meeting in which he "was attempting to oppose what he reasonably viewed as on-going discrimination," a supervisor, Mituza, engaged in "intimidation and threatening behavior" at the meeting and plaintiff was then denied bartending shifts. As plaintiff argues the case, these were the adverse employment actions.

Under the law, it's an adverse action if management's response to your good-faith discrimination complaints would dissuade a reasonably firm person for speaking out again. Sort of like icing out the whistleblower by doing something to him that will make him shut up in the future. The Supreme Court devised that test in the Burlington Northern case in 2006. What the Second Circuit (Hall, Lynch and Droney) reminds us, however, is that there must be "material adversity to separate significant from trivial harms" as "an employee's decision to report discriminatory behavior cannot immunize that employee from those petty slights or minor annoyances that often take place at work and that all employees experience," except, of course, for federal judges who really don't have to put up with any crap from anyone.

The outburst at the November 2013 union meeting is not an adverse action under Title VII, because "it did not concern or affect Dickens's employment status. Nor did it reach the level of dissuading a reasonable worker from making a complaint." As for the bartending denial, the Court says, there are not enough facts in the record to connect that to the November 2013 protected activity.