Adverse Employment Actions

January, 2017




             In order to prevail in an employment discrimination or retaliation lawsuit, a former employee must show, among other things, that she suffered an adverse employment action.

             Many times, individuals seek out employment attorneys because they feel they have been “discriminated” or “harassed” at the workplace.  However, the law does not define such terms in the same manner as seen through an employee’s eyes.

Granted, employers and their agents or supervisors many times act in inappropriate conduct that is clearly unreasonable, unfair and even vulgar.  However, while employees may be accurate in describing such inappropriate managerial conduct, such behavior may not rise to an adverse employment action sufficient to maintain a lawsuit.

A recent Connecticut District Court case illustrates the type of harm that must be suffered to qualify as an adverse employment action.  Erica Bento and Melissa Dubiel v. City of Milford and Lisa Diamond Grahm, 3:13-cv-01385 (VAB).

Bento worked as a full-time community outreach worker and Dubiel worked as a secretary/bookkeeper with the City.  Grahm was the Executive Director of the City’s Department of Human Services and their supervisor.

During their employment with the City, both employees filed numerous complaints with the City, claiming, for example, “unprofessional work environment” under Grahm.  Bento specifically complained about Grahm’s practice of requesting and disclosing detailed information pertaining to the personal lives of employees.  Both employees filed written complaints describing “financial impropriety” by Grahm and a “toxic environment” under her leadership.  In their lawsuit, although both employees were never terminated or demoted or reduced in pay from their respective positions, they claimed that Grahm took retaliatory actions that negatively impacted their employment and ultimately required both to take medical leave and eventually resign their employment.

The federal district court granted summary judgment to the employer on these employee’s claims under federal law, effectively dismissing their case in federal court.  In its decision, Judge Victor Bolden described what kind of “adverse employment action” was necessary to survive summary judgment.

Employer conduct must be “more disruptive than a mere inconvenience or an alteration of job responsibilities” in order to constitute an “adverse employment action.”  Galabya v. N.Y.C. Bd. of Educ., 202 F.3d 636, 640 (2d Cir. 2000).  An adverse employment action must be “a materially significant disadvantage with respect to the terms of [the plaintiff’s] employment.”  Williams v. R.H. Donnelly Corp., 368 F.3d 123, 128 (2d Cir. 2004)(holding that the denial oof plaintiff’s request to transfer to a different location did not constitute an adverse employment action for purposes of a prima facie discrimination case).

Regarding their claim of retaliation, the Court stated that the antiretaliation provisions of the law (Title VII) “…protects an individual not from all retaliation, but from retaliation that produces an injury or harm.”  Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53, 68 (2006).  The law therefore, separates “separate significant from trivial harms” to ensure that Title VII is not “misused” as a “general civility code for the American workplace.”  Id., citing Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 80 (1998).

“Normally petty slights, minor annoyances and simple lack of good manners” do not establish an adverse employment action under Title VII to support a retaliation claim.  The Court cited illustrating, for example, that two citations for insubordination were insufficient to constitute an adverse employment action because the plaintiff did not present evidence that the citations were a deviation from the employer’s normal disciplinary practices and the citations would not have dissuaded a reasonable employee from making a discrimination complaint.  Rivera v. Rochester Genesse Reg’l Transp. Auth.,  743 F.3d 11, 26 (2d Cir. 2012).

In another case cited, three investigations into plaintiff’s conduct, counseling and “empty” termination threats were not enough to be “materially adverse.”  Tepperwein v. Entergy Nuclear Operations, Inc., 663 F.3d 556, 568 (2d Cir. 2011).

The Court dismissed this case under summary judgment stating that both former employees failed to establish any adverse employment actions “as a matter of law.”







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