Retaliation Claims Against the Employer: Analysis Post Burlington Northern

employment disadvantage relating to the terms or conditions of employment. if the plaintiff plaint of an unlawful employment practice continues, the employer should remember that this standard only applies to plaintiffs claiming unlawful discrimination. the united states court of appeals for the second circuit previously applied a strict 47 position showed no harm and was not a materially adverse employment action). but see kessler v. west- standard for showing adverse employee action (even in a retaliation claim) and showing 43 discrimination. ring or affecting the plaintiff elsewhere may qualify.15 however, applying burlington northern's broader, failed to make this showing, the court "would automatically find failure to establish adverse prompt motion to vacate, was ready to apply the broader standard to the case and reversed in burlington northern, the because the transfer resulted in a loss of most managerial responsibilities); shockery v. ramsey, 493 f.3d analysis post burlington northern 20 3 vacate the second circuit's dismissal of her claim.40 17 as courts grapple with the broader application of the burlington northern standard in and the second circuit court of appeals. she concentrates in scott, the plaintiff filed a retaliation claimed and alleged that her employer threatened see id. railway co. v. white.1 mickelson v. new york life ins. co., 460 f.3d 1304, 1316�18 (10th cir. 2006). finding, the court required the adverse action to produce harm or injury to the plaintiff, and 30, 2007) the defendant's summary judgment motion on the plaintiff's retaliation claim, which all 42 u.s.c. � 1981 (2000). transfer was a materially adverse employment action even though it did not involve a loss in pay or title 33 an employer to retaliate against an employee because the employee has complained about been dismissed on summary judgment prior to burlington northern but was allowed to pro- of a retaliation complaint by a hyper-sensitive employee? this article attempts to resolve (w.d. tex. 2007) (concluding that a transfer at the same pay due to the rotational nature of the plaintiff's id. at 391. the circuit courts were split as to whether the employer's challenged action had "to be 24 ment action" which produced a "material employment disadvantage" in the terms or condi- injury cannot merely be trivial.49 retaliation claims against the employer to the position of track laborer was a materially adverse action taken in retaliation.21 submitted by the author on behalf of the fdcc civil rights and public entity section. burlington n., 548 u.s. at 68. employment action in a retaliation case."51 the burlington northern court granted certiorari to resolve the circuit split. compensatory damages, and the court affirmed the judgment finding that the reassignment northern, based upon the same facts, it is possible for an unlawful retaliation claim to reach ment action in retaliation). 42 llp, albany, new york and is an accomplished trial attorney. 38 9 48 258 americans with disabilitiesact of 1990, 42 u.s.c. � 12112(a) (2006);age discrimination in employment velikonja v. gonzales, 466 f.3d 122, 278 (d.c. cir. 2006). see burlington n. & santa fe ry. v. white, 548 u.s. 53, 71 (2006). the workplace.17 the court, impressed by plaintiff's 36 id. at 386�87. 27 tions of employment; instead, the challenged action must be materially adverse, meaning burlington n., 548 u.s. at 68. the substantive provision of title vii (dealing with discrimination) and contrasted it with standard only affects one of the three prongs of proof in a retaliation claim as long established complaint).47 see generally scott v. cellco p'ship, no. 98 civ. 7245 (lmm), 2007 u.s. dist. lexis 29063 (s.d.n.y. ceed to trial as analyzed under the new standard for showing adverse employment action.36 employment or workplace related and about how harmful that action must be to constitute lewis v. city of chicago, 496 f.3d 645, 654 (7th cir. 2007). id. at 53. 50 iii. the mcdonnell douglas analysis, id. 32 the burlington n., 548 u.s. at 59, 71. 2 8 941 (8th cir. 2007) (holding that transfer to a role with significantly less responsibility is adverse employ- id. at 68. ment complaint, the employer required the supervisor to attend sexual harassment training. courts post-burlington northern apply a different standard for analyzing adverse after burlington northern, plaintiffs are no longer required to show an "adverse employ- 42 u.s.c. � 2000e�3(a) (2006). retaliation claims may also arise under other federal statutes protect- scott v. cellco partnership is another example of a retaliation claim that would have id. at 64 ([t]he antiretaliation provision, unlike the substantive provision, is not limited to discriminatory report discriminatory behavior cannot immunize that employee from those petty slights or claim, finding that she did not point to any injury or harm that resulted from the alleged employer retaliated against her for making that complaint. following ms. white's harass- 40 retaliation claims against the employer 29 harm or injury.27 retaliation claims, only unlawful discrimination claims. readily grant a defendant's summary judgment motion because of the plaintiff's failure to (the burlington northern standard); and (3) that the materially adverse materially adverse"46 35 fdcc quarterly/spring 2009 retaliation claims against the employer on the broader standard to avoid facing a viable retaliation claim. the defense attorney, 15 an employee after he or she made a discrimination complaint. several courts have con- meanwhile, the employer reassigned ms. white from her position as forklift operator to the higgins v. gonzales, 481 f.3d 578, 589 (8th cir. 2007). tion for filing a wage discrimination complaint. the court held that this was sufficient to mcdonnell douglas corp. v. green, 411 u.s. 792 (1973). however, the new, broader standard established moreover, the court in burlington northern established that in an antiretaliation claim corresponding state statutes. 51 id. at *1. 30 46 signment is routine, it does not constitute adverse employment action in retaliation); mcgowan v. city of id. at *6. the employer subjected the plaintiff to a lengthy disciplinary investigation and during this once a plaintiff files an unlawful retaliation complaint, may argue that there was no adverse summary judgment for defendant.41 objective standard a plaintiff must only show that a reasonable worker might have been dis- the court held that 257 change the terms and conditions of employment.11 the action complained of must see id.; see also morrison v. carpenter tech. corp., 193 fed. appx. 148, 154 (3d cir. 2006) (finding that court considered the claim of a female forklift operator, ms. white. ms. white had filed a schoonover v. schneider nat'l carriers, inc., 492 f. supp.2d 1103 (s.d. iowa 2007). the court stated that"[t]he scope complaint alleging that her supervisor was sexually harassing her, and she asserted that her ation discrimination, the plaintiff is required to show that due to discrimination, she faced harm to the plaintiff as a result of the retaliatory action.23 in retaliation claims,19 513 f. supp. 2d 383, 391 (e.d. pa. 2007). in mickelson v. new york life insurance co., the plaintiff alleged if an employer did not know that the plaintiff filed a complaint, it logically follows that the injury or harm, and plaintiff's must establish all three prongs of the mcdonnell douglas to apr. 3, 2007). this dilemma, and in doing so, will explain the old standard applied to unlawful retaliation although burlington northern relaxed the standard for showing adverse employment 21 256 id. at 754. id. at *5-6 due to employer action because burlington northern made clear that the alleged harm or as hiring, firing, failing to promote, reassignment with significantly different responsibili- 6 this standard no longer applies to unlawful the court recognized a different standard for showing adverse employment action in the fdcc quarterly/spring 2009 employment action if a reasonable employee would see the action as materially adverse.12 that it severely hampered or terminated plaintiff's employment.39 phelan v. cook county, 463 f.3d 773, 787 (7th cir. 2006). discrimination were required to show adverse employment action which produced a material she obtained her bachelors degree in london, england, and the big picture: the mcdonnell-douglas analysis of retaliation claims retaliation."5 23 employment action even under the new broader standard due to the lack of harm or injury see generally burlington indus., inc. v. ellerth, 524 u.s. 742 (1998). similarly, in velikonja v. gonzales, the court found that there cannot be retaliation. therefore, the plaintiff must still be required to show that 31 14 adverse employment action in retaliation); holmes v. drug enforcementadmin., 512 f. supp. 2d 826, 851 sexually harassed her at work had recently been transferred.37 because if a plaintiff did not make a complaint of unlawful employment practices, it follows aggravated the above-stated dilemma that employers face by relaxing 49 york bar in 1990. ms. raghavan is also admitted to the united and employment issues. in reaching its decision, the court scrutinized the language in for to prove all three prongs of the mcdonnell douglas analysis.50 see supra note 7 and accompanying text. does the employer walk on eggshells, avoiding any business action that might affect the id. at 67. id. actions that affect the terms and conditions of employment."). therefore, there was no analysis). for these reasons, the defendant employer has a sound basis for opposing any this post burlington northern, requires plaintiffs to show the following: (1) that the employee since the employer is more likely to find itself litigating whether there was adverse id. 10 raised an issue of fact as to whether the employer's actions amounted to an adverse employ- ties, or a decision causing significant change in benefits."10 retaliation claim than in the non-retaliation discrimination claim.9 the antiretaliation provision, noting that the antiretaliation provision did not limit itself to therefore, while the dilemma faced by the employer once the employee makes a com- 39 employment action in this post burlington northern era, the employer should be educated 259 ever, employer's can take comfort in the fact that the broader standard does not cover trivial iv. moore v. city of philadelphia, 461 f.3d 331, 352 (3d cir. 2006). such a complaint does not immunize the employee from the petty irritations of the workplace additionally, the court in burlington northern held argument that post burlington northern, the mcdonnell douglas analysis is inapplicable. in the analysis of mcdonnell douglas corp. v. green.45 see, e.g., roney v. ill. dep't of transp., 474 f.3d 455, 461 (7th cir. 2007) (concluding that where reas- establishing a retaliation claim post burlington northern that in a retaliation claim, however, the employee plaintiff could show there was adverse harassment, her employer harassed, insulted, and threatened to fire her.25 the material action need not necessarily be an employment action; rather, an action occur- tions of employs.28 employer could not possibly have acted in retaliation (prong three of the mcdonnell douglas id. states supreme court broadened the standard for what may constitute an adverse employ- 18 in burlington northern, a jury awarded plaintiff $43,500 in in nagle v. rma, the risk management association, the court dismissed the plaintiff's over" and that these actions did not affect the plaintiff's work.26 establish a prima facie case before the burden is shifted to the defendant employer. and 42 u.s.c. � 19813 latha raghavan 19 prior to the supreme court's decision in burlington northern, suaded from making or supporting a charge of discrimination.30 fronted such retaliation complaints and provide some indication of what will result under gray v. ark. dep't of human servs., no. 4:04cv00490 gh, 2007 wl 1020535, *12 (e.d. ark. march highlighted by retaliation complaints that arise when an employer transfers or reassigns the broader standard.32 11 establish an adverse employment action in retaliation.33 that this was merely the plaintiff's "own subjective belief that her career with rma was burlington n. & santa fe ry. v. white, 548 u.s. 53, 67 (2006). this properly constituted an adverse employment action and reversed the dismissal of the 26 the practical effect of courts applying burlington northern's broader standard is corrective performance evaluation). to the plaintiff.44 northern, plaintiffs claiming unlawful retaliation as well as plaintiffs claiming unlawful id. at *5. under th[e] [title vii antiretaliation] provision is broader than title vii's discrimination the harm or injury could not merely be trivial. it reasoned that "[a]n employee's decision to 4 id. 37 since burlington northern, creative plaintiff's attorneys have argued that the mcdon- with such argument have not yet adopted such an interpretation of the effect of burlington chester county dep't of social services, 461 f.3d 199, 209�10 (2d cir. 2006) (holding that plaintiff's therefore, post burlington-northern, "the range of conduct prohibited see burlington n., 548 u.s. at 68. complaining employee, or does the employer proceed with business as usual and run the risk the court found that the plaintiff's allegations, if true, 42 u.s.c. �� 2000e�e-17 (2006). eufala, 472 f.3d 736, 743 (10th cir. 2006) (denying a request to switch to day shifts was not a materially id. at 60 (internal citations omitted). employer cannot discriminate against an employee and then hide behind the argument that 255 supervisor's complaint to be unsubstantiated.8 the employee's deprivation was not material."43 5 id. at 58. 261 however, once the united position of laborer. further, based on the supervisor's claim that ms. white was insubordi- retaliation claims against the employer therefore, post burlington her juris doctorate from rutgers university school of law. the united states supreme court decision in burlington northern & santa fe rail- minor annoyances that often take place at work and that all employees experience."22 way co. v. white6 of the antiretaliation provision extends beyond workplace-related or employment-related an employer faces a dilemma after an employee makes a discrimination complaint: nate, the employer suspended ms. white indefinitely, only to reinstate her after it found the the employer took retaliatory action, which "a reasonable employee would have found. . . provision."18 45 harm or injury requirement ensures that courts dismiss claims that fail to show injury or 12 by burlington northern requires a different analysis for the retaliation part of the action. adverse employment action.24 employment action in retaliation cases than in discrimination cases. prior to burlington act, 29 u.s.c. � 623(d) (2006); employee retirement income security act, 29 u.s.c. � 1140 (2006); and see burlington n., 548 u.s. at 68. see higgins, 481 f.3d at 589. moreover, the employee claiming retaliation is still required a. harm or injury requirement retaliation claims against the employer: investigation the plaintiff was prevented from receiving promotions.34 id. states district court for the northern district of new york, a plaintiff need not show an adverse employment action related to the terms and condi- it is unlawful under title vii of the civil rightsact of 19642 for failing to show an adverse employment action.31 id. at 68. in essence, the court formulated a more lenient standard for retaliation claims. how- she was admitted to the maryland bar in 1989 and the new burlington n., 548 u.s. at 60. id. ment action for retaliation claims in burlington northern, the plaintiff in scott moved to fdcc quarterly/spring 2009 41 unlawful discrimination.4 b. discrimination claims vs. retaliation claims 34 260 latha raghavan is a partner in the firm of goldberg segalla thus, prior to burlington northern, if a plaintiff failed to make this showing a court would he or she made a complaint (prong one of the mcdonnell douglas analysis).48 despite the lenient standard of burlington northern, lawyers should remember that the that her employer denied her the ability to work part-time and terminated her in retalia- conclusion in a claim of non-retali- 16 it continued to require plaintiffs to prove that the employer's action 7 that the action would dissuade a reasonable worker from making or supporting a charge of adverse employment action that constitutes "a significant change in employment status, such engaged in protected conduct (made a complaint of unlawful employment practice); (2) that id. at 61�64. light of each retaliation claim's unique facts, the employer should bear in mind that "[a]n the plaintiff claimed that after filing a complaint of sexual ii. nell douglas analysis no longer applies to retaliation claims. however, the courts faced establish a retaliation prima facie case.29 i. the court defined materially adverse actions as the type of actions that "would likely have plaintiff need not necessarily show that the adverse action affected the terms and conditions occurred prior to the court's decision in burlington northern.38 introduction plaintiff's retaliation claim.35 action was causally linked to the protected conduct (the retaliation was due to the plaintiff's fdcc quarterly/spring 2009 harmed or injured the plaintiff.20 the plaintiff did not establish any harm or injury as a result of retaliation where her employer gave her a dissuaded a reasonable worker from making or supporting a charge of discrimination."13 ment action and allowed the case to proceed to jury.42 the requisite showing for an adverse employment action.7 262 claims and the new, broader standard as articulated in burlington northern & santa fe to transfer her to a new location where three people of whom plaintiff had complained had of employment.14 a jury and for a judge to eliminate an unlawful discrimination claim on summary judgment 1 13 ing employees, such as the family and medical leave act of 1993, 29 u.s.c. � 2615(a)(2) (2006); the retaliatory acts and harm."16 28 22 25 in so northern. moreover, burlington northern did not address this argument and it is illogical 44 her practice in general litigation, insurance, construction the court partially granted id. at 761.