Retaliation claim fails under Title VII

In this retaliation case under Title VII, we learn once again what constitutes an adverse action under the civil rights laws. We also learn once again what constitutes the "oppositional" activity necessary to claim retaliation. Adverse actions are an easy call if you are fired or denied a promotion. But what about lesser job actions that can aggrieve most employees? Oppositional activity under Title VII is an easy call if you explicitly complain about discrimination. But not every issue is an easy one, which is what the courts are for.

The case is Moy v. Perez, a summary order decided on October 11. If you complain about discrimination and something bad happens to you afterwards, that opens the door to a retaliation case. In this case, plaintiff was denied a promotion in March 2011. In 2010-11, he participated in a "climate survey." The decision does not explain what this climate survey was intended to accomplish, but my guess is that employees were asked to accurately describe the workplace environment. My guess is also that he did not claim in the climate survey that he had to endure a discriminatory work environment. The Court of Appeals (Raggi, Hall and Carney) says that "insofar as Moy contends that his participation in the 2010-2011 'climate survey' constituted a protected activity, his claim fails because no complaint allegations suggest that such activity entailed opposition to a practice prohibited by Title VII."

Plaintiff also loses the case because he did not suffer an adverse employment action. Employees do not refer to bad experiences at work as adverse employment actions. That's a phrase that only lawyers and courts use. In plain English, an adverse action in retaliation claims is some response by management that would prevent the average employee from complaining about discrimination again.

Moy alleges that (1) his supervisors “micromanaged” him and subjected his work to “heightened scrutiny,” (2) he received a less positive performance evaluation than he had in past years; and (3) his supervisors did not follow several DOL protocols in bestowing that evaluation. Such treatment, “considered both separately and in the aggregate,” would not dissuade a reasonable employee from “‘making or supporting a charge of discrimination.’”

Not only did plaintiff have a positive performance evaluation in spite of the hassles he went through, but the alleged close supervision constitutes "trivial harm" that would not prevent a reasonable employee from complaining about discrimination in the future.