Tuesday, November 4, 2008

Being smacked around by a supervisor is not an "adverse employment action"

A guy working in a post office was assaulted by a supervisor. Plaintiff alleges the assault was an act of discrimination on account of his race, color and national origin. But he can't sue the post office because this assault is not an "adverse employment action."

The case is Mathirampuzha v. Potter, decided on November 3. (My write-up on another aspect of the opinion is here). The plaintiff alleged that a supervisor, Sacco, "grabbed the plaintiff's arm, punched him in the shoulder and the chest, spit in his face, and poked him in the eye. Sacco also shouted, 'Joe, I'll never let you go the Hartford plant.'" When plaintiff complained to a higher-ranking supervisor, she laughed it off. However, Sacco was issued a warning letter and transferred to another work assignment for at least a year.

Under Title VII of the Civil Rights Act of 1964, you need an "adverse employment action" to bring a lawsuit. In other words, your negative treatment must be worth suing over. At one end of the equation is job termination, clearly an adverse action. At the other end of the picture is being given a lousy photocopier, not an adverse action. The courts apply a sliding-scale analysis in this area.

The Court of Appeals says, "Only in limited circumstance does a single, acute incident of abuse qualify as an adverse employment action." So, in hostile work environment claims, a single act of sexual harassment may qualify if it's "extraordinarily severe," such as rape. The question is whether the single act of non-sexual abuse represents an "intolerable alteration of the plaintiff's working conditions." No dice for plaintiff.

Since the plaintiff continued to work at the plant, he was not denied salary or responsibilities, and the assault did not bring lasting harm to his ability to do his job, it's not an adverse action. The Second Circuit explains,

The physical encounter itself, while understandably upsetting, was not so severe as to alter materially the plaintiff's working conditions -- unlike, for example, a rape, or an obscene and humiliating verbal tirade that undermines the victim's authority in the workplace. The Postal Service's response to the incident, moreover, while not immediate, ultimately ameliorated the plaintiff's working conditions, as Sacco was eventually disciplined and transferred to another work assignment for at least one year. Although a more severe incident of harassment or abuse could constitute an adverse employment action, the brief incident in this case, however regrettable, does not meet the "extraordinarily severe" standard.

One final ruling by the Court of Appeals in this case. Plaintiff alleged that he was denied a transfer for discriminatory reasons. But that claim fails because he cannot show that anyone with a discriminatory motive was responsible for this. While Sacco assaulted plaintiff, Sacco had nothing to do with the transfer denials. The Court of Appeals does note that its precedents support the position that some transfer denials constitute adverse employment actions if they objectively create a significant change in working conditions. But that gray area is not fleshed out here since plaintiff cannot show that anyone with discriminatory animus denied him the transfers.

1 comment:

Anonymous said...

Very interesting. I'm somewhat in a similar situation and I wonder what your take is. I was subject to verbally offensive treatment last week and I was picked out clearly because of my race.

My situation is a little complicated though because my employer has contracted me to a client company and it is at the client location that the physical intimidation accompanied with verbal abuse occurred.

I cannot go to the client's HR dept, legal dept or supervisor. Instead, I have to report to my employer.

My manager in turn sent an email to the client expressing concern and so far nothing has been done. There has been no investigation of any kind. This is almost a week now.

My question is, do I have a case?

From what I've read, a supervisor's decision not to take action to stop harassment by co-workers in retaliation for employee's opposition to civil
rights violations qualifies as an "adverse employment action".

What do you think?

I'm not a lawyer by any measure, but I've not been able to get a lawyer to help me with this because they want easy slam dunks. The few that I've talked to think that I don't have a case.