DEPENDS. year! unlawful procedures in the workplace. in the workplace.

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1 WHAT IS IS AN AN ADVERSE ADVERSE ACTION? ACTION? WELL, IT WELL, IT DEPENDS By: Michelle J. Douglass, J. Douglass, Esquire Esquire The Law Office Office of Michelle of Michelle J Douglass, J Douglass, L.L.C. L.L.C. Burlington Northern Northern v. White v. - Title White VII retaliation Title analysis VII retaliation analysis Burlington Northern Northern & Santa Fe & Ry. Santa Co. v. Fe White, Ry. 126 Co. S. v. White, 126 S. Ct (2006). (2006). This is is by by far the far most the important most important employment law employment case this law case this year! Employees have have long long awaited awaited direction direction from the Supreme from Court the Supreme on Court on what constitutes an adverse an adverse employment employment action in the retaliation action in the retaliation context especially given given the disagreement the disagreement among the lower among courtsthe lower courts on this topic. topic. Indeed, retaliation retaliation claims are claims a large part are of employment a large part of employment discrimination law. In law. the early In 1990 s the early some 15.3% 1990 s of all some illegal 15.3% of all illegal discrimination charges charges filed with filed the EEOC with alleged the EEOC retaliation. alleged By retaliation. By 2005, that that had had almost almost doubled doubled to 29.5%. to That 29.5%. is worth a That moment s is worth a moment s reflection: Forty Forty years years after invidious after invidious discrimination discrimination in employment in employment was outlawed, almost almost one in three one EEOC in complaints three allege EEOC complaints allege retaliation for protesting for protesting that illegality, that either illegality, in addition either to some in addition to some underlying discrimination or independent or independent of it. Such statistics of it. Such statistics demonstrate the need the to need broaden to and broaden better enforce and the better laws enforce the laws designed to present to present retaliation retaliation for reporting possible for reporting illegal possible illegal or unlawful procedures in the workplace. in the workplace. In New Jersey, Jersey, the trend the in trend the legislature in the and legislature courts has and been courts to has been to broaden the anti-retaliation the anti-retaliation laws and to strengthen laws and remedies to strengthen remedies available. Just Just before before leaving leaving office, Governor office, Richard Governor Codey Richard signed Codey signed into law law an amendment an amendment to the Conscientious to the Conscientious Employee Protection Employee Protection Act (first passed passed a bill as by a the bill Senate by the in November Senate 2004). in November The 2004). The new law law enhances enhances the scope the of CEPA scope by specifically of CEPA assuring by specifically assuring protection to employees to employees who blow the who whistle blow on Enron-type the whistle on Enron-type

2 internal fraud. fraud. Additionally, Additionally, the remedy provisions the remedy of CEPA provisions were of CEPA were expanded. For instance, For instance, CEPA claims CEPA are exempted claims from are the exempted from the Punitive Damages Act. Finally, Act. Finally, as will be discussed as will be below, discussed the New below, the New Jersey State State courts courts have progressively have progressively interpreted anti-retaliation interpreted anti-retaliation laws such as CEPA as CEPA in a liberal in a manner liberal in manner order to afford in order employees to afford employees the protections intended intended by such by laws. such laws. The Supreme Court s Court s recent recent pronouncement pronouncement what constitutes what an constitutes an adverse employment action action similarly reflects similarly Congressional reflects and Congressional and legislative intent intent to protect to protect the litigation the and litigation enforcement and process, enforcement process, i.e., courts, EEOC, EEOC, and employees and employees who protest, who against protest, employeragainst employer interference. Accordingly, Accordingly, the Court ruled the that Court an employer s ruled that an employer s actions are are adverse adverse employment employment actions if they actions are harmful if they to the are harmful to the point that that they could they well could well dissuade a reasonable a reasonable worker from worker from making or supporting a charge a of charge discrimination. of discrimination. The Third Circuit Circuit has defined has defined an adverse an employment adverse employment action as one action as one that is is serious and and tangible tangible enough to alter enough an employee s to alter an employee s compensation, terms and terms conditions, and or privileges conditions, of or privileges of employment. Cardenas Cardenas v. Massey, v. 269 Massey, F. 3d 252, (3d F. Cir. 3d 252, 263 (3d Cir. 2001)(quoting Robinson Robinson v. City of v. Pittsburgh, City of Pittsburgh, 120 F.3d 1286, F.3d 1286, 1300 (3d Cir. 1997)). Oral reprimands and derogatory and derogatory comments do not comments qualify as do not qualify as adverse employment actions actions for purposes for of purposes establishing of a prima establishing a prima facie case case of retaliation. of retaliation. Id. at Id. Similarly, at a purely Similarly, lateral a purely lateral transfer, that that is, a transfer is, a transfer that does that not involve does a not demotion involve form a demotion in form or substance, cannot cannot rise to the rise level of to a materially the level adverse of a materially adverse employment action. action. Williams Williams v. Bristol-Myers v. Bristol-Myers Squibb Co., 85 F.3d Squibb Co., 85 F.3d 270, (7th(7 Cir. th Cir. 1996), 1996), cited with cited approval with in approval Robinson, 120 in Robinson, F. 3d 120 F. 3d at Indeed, the the Third Third Circuit Circuit has adopted has the adopted standard the set forth standard by the set forth by the Supreme Court Court in Burlington Burlington Industries v. Industries Ellerth, 524 U.S. v. Ellerth, 742, 524 U.S. 742, m141 m141 L.Ed. L.Ed. 2d 633, 2d , S.Ct (1998); S.Ct. in 2257 defining (1998); an in defining an adverse employment action. action. Remember: Remember: the Ellerth standard the Ellerth was standard was developed to define to define and distinguish and distinguish those acts those of discrimination acts of (not discrimination (not retaliation) which which were or were not or subject were to not certain subject affirmative to certain affirmative defenses.

3 The Supreme Court Court held that held an employee that an who employee had suffered who an had suffered an adverse employment action action prevented prevented an employer an from employer raising thefrom raising the affirmative defense defense that the that employer the employer had an effective had remedial an effective antidiscrimination policy policy in place in and place that the and plaintiff that failed the to avail plaintiff failed to avail herself of those of those remedies remedies in order to in defeat order vicarious to defeat and direct vicarious and direct liability. Id. Id. remedial anti- In Tucker v. Merck v. Merck & Co., Inc., & Co., 131 Fed. Inc., Appx , Fed. 855 Appx. (3d Cir. 852, 855 (3d Cir. 2005), the the court court noted noted that the that Supreme the Court Supreme defined an Court adverse defined an adverse employment action action as: as: A tangible tangible employment employment action constitutes action a constitutes a significant change change in employment in employment status, such status, as firing, such as firing, failing to promote, to promote, reassignment reassignment with significantly with significantly different responsibilities, or a decision or causing a adecision causing a significant change change in benefits in benefits A tangible employment A tangible employment action in in most most cases cases inflicts inflicts economic economic harm. harm. A tangible employment action is action different, is however, different, than an however, than an adverse employment action. action. Tangible is defined is defined as as material, substantially substantially real, concrete, real, capable concrete, of being capable of being precisely identified identified or realized or by realized the mind. by the mind. Adverse is is defined as as hostile, hostile, opposed opposed to one s interest, to one s causing interest, harm, causing harm, opposite in position. in position. Merriam Webster Merriam Dictionary, Webster 2006 Dictionary, Ed Ed. The two concepts simply simply have different have different meanings. meanings. The ruling in the in Burlington the Burlington case is a huge case victory is a huge for workers victory for workers because the the Supreme Supreme Court has Court finally, has and appropriately, finally, and appropriately, relaxed the the standard standard for evaluating for whether evaluating conduct iswhether conduct is sufficiently severe severe to support to support a retaliation a retaliation claim. The standard claim. The standard for evaluating adverse adverse employment employment actions adopted actions by the adopted by the Third Circuit has been has overruled. been overruled. It no longer It applies. no longer A moreapplies. A more modern and and less less restrictive restrictive approach approach has been announced has been by announced by the Supreme Court Court in Burlington. Burlington. In Burlington, the justices the first justices expanded first the concept expanded of the concept of adverse employment action to action include conduct to include occurringconduct occurring outside the the workplace. workplace. The Court The then Court adopted then a broad adopted test a broad test

4 for evaluating whether whether conduct conduct is retaliatory is - retaliatory a standard that a standard that does not not require the alleged the alleged retaliatory retaliatory act to directly act impact to directly a impact a term or or condition of employment. of employment. Rather the Court Rather held that the Court held that the anti-retaliatory provision prohibits provision any materially prohibits any materially adverse treatment treatment by an employer, by an either employer, on or off theither on or off the job, which which is reasonably is reasonably perceived by perceived the employee as by the employee as being related to a previously to a previously made complaint. made complaint. Basic Rule: Rule: We conclude that the that anti-retaliation the anti-retaliation provision (Section provision 704) (Section 704) does not not confine the actions the actions and harms and it forbids harms to those it forbids that to those that are related related to employment to employment or occur at the or workplace. occur at the workplace. Burlington Northern Northern v. White, v. 126 White, S. Ct. 2405, S. Ct. (2006). 2405, 2407 (2006). We also conclude conclude that the that provision the covers provision those (and covers only those (and only those) employer actions actions that would that have been would materially have been materially adverse to a to reasonable a reasonable employee employee or job applicant. or job In theapplicant. In the present context context that means that that means the employer s that the actions employer s must actions must be harmful to the to point the that point they could that well dissuade they could a well dissuade a reasonable worker worker from making from or making supporting or a charge supporting of a charge of discrimination. Id. at Id. at (Court adopted adopted the EEOC the EEOC standard). No No link link to employment to employment needed. needed. Unlike Unlike Title VII s Title basic VII s anti-discrimination basic anti-discrimination section section (703), the anti-retaliation the anti-retaliation section section (704) has has different language language and a different and purpose. a different purpose. Section prohibits prohibits discrimination discrimination with respect with to respect to conditions of employment, of employment, but Section but 704 Section has no 704 has no such limiting words. words. Section 703 Section prevents 703 injuries prevents injuries based on on who who people people are (i.e. are based (i.e. on sex, based race, on sex, race, etc.) while Section Section 704 is 704 based is on based what people on what do people do (e.g. filing filing an EEOC an charge EEOC or complaining charge or to complaining to management). Limiting Limiting Section 704 Section retaliation 704 to retaliation to employer actions actions that are work-related that are or work-related or employment related related would would not achieve not Section achieve 704 s Section 704 s purpose. Material Material Adverse Adverse Action. In order Action. to separate In order to separate significant from from trivial harms, trivial the harms, Court requires the Court requires

5 the employee to show to that show the employer s that the action employer s action was materially adverse. adverse. This will exclude This petty will exclude petty slights or minor minor annoyances. annoyances. Reaction of a Reasonable of a Reasonable Employee. The Employee. Court The Court adopted an objective an objective standard, standard, so individual so an individual employee s unusual subjective subjective feelings will feelings not be will not be relevant. The focus The is focus on the materiality is on the of the materiality of the employer s action action and the and the perspective of a of a reasonable person person in the plaintiff s the plaintiff s position. position. Examples: Changed job duties. job In duties. the Burlington In the case, Burlington the case, the employer changed changed the employer s the employer s duties, however duties, however the duties were were still within still her within job description. her job The description. The job description did not did matter. not What matter. mattered What wasmattered was that the new the job new was dirtier, job harder, was less dirtier, harder, less prestigious, and perceived and perceived by other employees by other asemployees as being worse. worse. (White was was working working as a fork lift as a fork lift operator, and and the employer the employer transferred transferred her to work her to work as a standard track track laborer). laborer). Temporary Suspension. Suspension. In the Burlington In case, the Burlington case, the employee was was suspended suspended for 37 days, for and 37 then days, and then reinstated with back with pay. back The Court pay. said athe Court said a reasonable person person would would find that find a month that without a month without a paycheck is a is serious a serious hardship. hardship. Schedule Schedule Change. Change. Might not matter Might to many not matter to many employees, but but may may matter matter enormously enormously to a young to a young mother with with school school age children. age children. Refusal Refusal to Invite to to Invite Lunch. Usually to Lunch. trivial, butusually trivial, but exclusion from from a weekly a weekly training lunch training might well lunch might well deter a a reasonable person person from complaining. from complaining. Treatment of Other of Other Discrimination/Retaliation Claims Claims Since the the federal federal courts have courts evaluated have evaluated adverse employment actions under under Title VII Title in the VII same in the manner same as the manner LAD, the as ADA, the LAD, the ADA,

6 ADEA and and 42 USC 42 USC Section Section 1981 claims, 1981 the claims, analysis the for evaluating analysis for evaluating an adverse employment action under action any under of these any causes of of these actioncauses of action will be be governed by the by standard the standard set forth in Burlington set forth Northern. in Burlington Northern. See, Davis v. The v. City The of City Newark, of 2006 Newark, U.S. Dist LEXIS U.S , Dist. LEXIS 63308, decided August August 31, , (case 2006 dismissed (case since dismissed plaintiff failed since to plaintiff failed to establish a prima a prima facie case facie of case race discrimination of race discrimination under Title VII or under Title VII or the LAD LAD because because she could she not could demonstrate not demonstrate that she suffered that an she suffered an adverse employment action which action was which defined was an action defined that as an action that must be be sufficiently severe severe as to alter as the to employee s alter the compensation, employee s compensation, terms, conditions or privileges or privileges of employment, of employment, or deprive or tend or deprive to or tend to deprive her her of employment of opportunities opportunities or otherwise or adversely otherwise affect adversely affect her status as an as employee. *29); an Foster v. Ashcroft, Foster v Ashcroft, U.S. Dist U.S. Dist. LEXIS 47896, July 14, July , (court 2006 dismissed (court race dismissed retaliation race claim retaliation claim finding that that plaintiff plaintiff did not did suffer not an adverse suffer an employment adverse action employment as action as a result of a of negative a negative performance performance evaluation evaluation which did not which tangibly did not tangibly alter the the terms terms and conditions and conditions of employment. ); of employment. ); Speer v. Norfolk Speer v. Norfolk Southern Railway Railway Corp., Corp., 121 Fed Appx Fed (3d Appx. Cir. 2005)(ADA 475 (3d Cir. 2005)(ADA claim dismissed on finding on finding that plaintiff that did not plaintiff suffer an did adverse not suffer an adverse employment action); action); Langley Langley v. Merck v. & Merck Co., 2006 & U.S. Co., App LEXISU.S. App. LEXIS 14958, June June 15, , (plaintiff s 2006 (plaintiff s Section 1981 Section race discrimination 1981 race discrimination case dismissed upon finding upon that finding reassignment that of reassignment position after of position after company reorganization did not constitute did an not adverse constitute job an adverse job assignment); Igwe Igwe v. DuPont v. DuPont De Nemours De Nemours & Co, Ic, 2006 & U.S. Co, App. Ic, 2006 U.S. App. LEXIS 11801, May May 8, 2006, (Title VII VII and Section and Section 1981 race race discrimination dismissed dismissed where no dispute where that no transfer dispute and that transfer and demotion were were adverse adverse employment employment actions but no actions evidence of but no evidence of discriminatory animus); animus); Deiser v. Deiser Gloucester v. County, Gloucester County, 2006 U.S. U.S. Dist. LEXIS LEXIS 13614, 13614, March 29, March 2006, (Sheriff 29, 2006, officer s (Sheriff temporary officer s temporary reassignments were were duties duties he could he expect could to perform expect as to part perform of his as part of his job and and therefore therefore not considered not considered adverse; court adverse; did not consider court did not consider reassignments to be to harassing be harassing and dismissed and dismissed case). case). Treatment of Other of Other Retaliation Retaliation Claims Claims Whistleblower Cases Cases In Nardello v. Township v. Township of Voorhees, of Voorhees, 377 N.J. Super N.J. Super. 428 (App. Div. 2005), the the Appellate Appellate Court reversed Court summary reversed judgment summary judgment

7 dismissing plaintiff s plaintiff s complaint complaint under New Jersey s under Conscientious New Jersey s Conscientious Employee Protection Protection Act Act (CEPA), N.J.S.A. 34:19-1, et. seq. et. Inseq. In reversing, the the Appellate Appellate Court determined Court determined that a jury could that draw a jury an could draw an inference that that the plaintiff the had plaintiff suffered a had series suffered of adverse a series of adverse retaliatory actions actions by his employer. by his employer. The court noted The that court in 1999, noted that in 1999, plaintiff obtained obtained the third the highest third rank in highest the department a rank in the department a lieutenant. Id. at Id at As 436. a lieutenant, As a he lieutenant, was in charge he of the was in charge of the SWAT team. Id. Plaintiff Id. Plaintiff set forth several set forth instances several beginning instances beginning in 1999 where where was he forced was to forced inform superiors to inform of cover superiors ups and of cover ups and alleged misconduct. Because of Because this, plaintiff of claimed this, that plaintiff he claimed that he suffered adverse adverse employment employment actions, such actions, as: being denied such as: being denied permission to obtain to obtain firearms instructor firearms training instructor relative to training his relative to his membership on the on SWAT the SWAT team; coerced team; to coerced resign as leader to resign and a as leader and a member of the of SWAT the SWAT team; denied team; the denied ability to work the on ability crime to work on crime prevention programs; and removed and removed from the detective from the bureau, detective with bureau, with his authority to supervise to supervise taken away. taken He also away. claimed He that also he claimed was that he was given demeaning jobs jobs for his for rank. his Id. rank. Id. The Court acknowledged that the that plaintiff the suffered plaintiff no reduction suffered in no reduction in pay but but pointed pointed to the to Supreme the Supreme Court s analysis Court s of cases analysis brought of cases brought under the the New New Jersey Jersey Law Against Law Discrimination, Against Discrimination, N.J.S.A. 10:5-1, N.J.S.A. 10:5-1, et seq., the the Legislature intended intended victims of discrimination victims of discrimination to obtain to obtain redress from from mental mental anguish, anguish, embarrassment, embarrassment, and the like, without and the like, without limitation to severe to severe emotional emotional or physical or ailments. physical Id. ailments. Id. The court specifically rejected rejected an analysis an of analysis plaintiff s claim of plaintiff s under claim under a standard that that included included a requirement a requirement of a finding that of a the finding adversethat the adverse employment actions actions involved involved a tangible a tangible action affecting action terms affecting and terms and conditions of employment. of employment. The Court further The pointed Court to further pointed to the Supreme Court s Court s holding holding Green in v. Jersey Green City v. Bd. Jersey of Ed., 177 City Bd. of Ed., 177 N.J (2003), (2003), wherein wherein the court the noted court that many noted separate that but many separate but relatively minor minor instances instances of behavior of directed behavior against directed an employee against an employee that may may not be not actionable be actionable individually individually but that may combine but that to may combine to make up up a pattern a pattern of retaliatory of conduct retaliatory may constitute conduct an may constitute an adverse employment action action under CEPA. under Id. CEPA. at 448. Id. at 448. It appears that in that light in of the light relaxed of standard the relaxed adopted standard by the adopted by the United States States Supreme Supreme Court in Burlington Court in Northern, Burlington the ThirdNorthern, the Third Circuit decisions in the in future the will future be more will in line be with more the in analysis line with the analysis

8 and holdings in the State in courts the on State the issue courts of adverse on the issue of adverse employment actions actions under all statutory under and all common statutory law and common law frameworks for claims for claims of retaliation. of retaliation.

2007 EMPLOYMENT LAW SYMPOSIUM July 20, 2007 Dallas, Texas

2007 EMPLOYMENT LAW SYMPOSIUM July 20, 2007 Dallas, Texas RETALIATION CLAIMS AFTER BURLINGTON NORTHERN V. WHITE MARLOW J. MULDOON II Cooper & Scully, P.C. 900 Jackson St., Suite 100 Dallas, Texas 75202 214-712-9500 214-712-9540 (fax) marlow.muldoon@cooperscully.com