Circuit lays out standard for retaliatory hostile work environment

The Court of Appeals holds that employees who claim they suffered a retaliatory hostile work environment must show that, "either singularly or in the aggregate, [the alleged retaliation] were 'materially adverse'" and that the hostile environment "might have dissuaded a reasonable worker from making or supporting a charge of discrimination." This holding applies the familiar Burlington Northern retaliation standard, but it is the first time the Court does so when the plaintiff claims that her EEOC charge was followed by a hostile work environment. In the process, the standard set forth in this case is good for plaintiffs, as it rejects the argument that retaliatory hostile work environment cases require plaintiffs to show the harassment was severe or pervasive. But plaintiff still loses the appeal because she cannot satisfy the new test.

The case is Carr v. New York City Transit Authority, issued on August 7. Burlington Northern applies the "dissuaded a reasonable worker" test, which is more favorable to plaintiffs than the disparate treatment adverse action test, which requires the plaintiff show that the adverse action affected the terms and conditions of employment. Here, plaintiff claims that, following her EEOC charge, 

her relationships with her supervisors and her performance evaluations deteriorated, which she attributes to retaliation.  Among other  things,  Carr asserts that [her supervisor] Chan  was disrespectful and hostile to her in emails; that Chan assigned her increased job responsibilities including responsibility for Elevator and Escalator Communications, compiling a new Employee Training Manual, and completing various other reports; that Chan threatened to cancel her vacation time if she did not complete her projects; and that analysts who worked under her were removed.

The Transit Authority argued that the retaliatory hostile work environment applies the same test as a traditional hostile work environment, i.e., a showing that the hostile conduct was severe or pervasive. The Court of Appeals (Parker, Pooler and Nathan) holds that the NYCTA is not advocating the right test but that plaintiff still loses because there was no adverse action. The Court expressly rejects the severe or pervasive test in retaliatory hostile work environment cases, noting that the Court has actually articulated that test in one prior case and district courts in the Second Circuit have also done so. But that does not help Plaintiff. The Court holds:

the alleged retaliatory actions were the result of generally applicable workplace policies and Carr has not adduced evidence that these policies were applied to her and not others. We  have held that absent allegations of more direct hostile conduct, a reasonable employee would not be dissuaded from taking protected action simply because they are subject to the same policies as other employees. Tepperwien v. Entergy Nuclear Operations, Inc., 663 F.3d 556, 568, 570-71 (2d Cir. 2011). We conclude that these complaints, even when taken in the aggregate, would not dissuade a reasonable employee from lodging a complaint and therefore, they were not materially adverse.

Nor can plaintiff show pretext (even had she made out a prima facie case) because her less-than-stellar performance reviews were not shown to be false. Under Second Circuit law, reiterated in this case, it is not enough to show these reviews closely followed her protected activity.