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If you are a plaintiff, proving that some employment action was adverse is not always an easy task. And if you are the defendant, convincing a fact finder that the challenged action was not sufficiently adverse may at times be difficult. What then is an adverse employment action? Both Title VII and the New Jersey Law Against Discrimination prohibit retaliation against employees who oppose discriminatory employment practices. For example, Title VII makes it unlawful for an employer to discriminate against an employee because that person “has opposed any practice made an unlawful employment practice by [Title VII], or because [that person] has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing [under Title VII].” 42 U.S.C. �� 2000e-3(a). Similarly, the LAD provides that it is an unlawful employment practice for “any person to take reprisals against any person because that person has opposed any practices or acts forbidden under this act or because that person has filed a complaint, testified or assisted in any proceeding under this act or to coerce, intimidate, threaten or interfere with any person in the exercise or enjoyment of … any right granted or protected by this act.” N.J.S.A. 10:5-12(d). One of the hallmarks of any Title VII or LAD retaliation claim is the presence of an adverse employment action. Conduct is considered to be retaliatory and therefore violative of Title VII only if it “alters the employee’s ‘compensation, terms, conditions, or privileges of employment,’ deprives him or her of ‘employment opportunities,’ or ‘adversely affects his [or her] status as an employee.’” Robinson v. City of Pittsburgh, 120 F.3d 1286 (3d Cir. 1997) (citation omitted). Or, as the court stated in Swingle v. Henderson, 142 F. Supp. 2d 625 (D.N.J. 2001), the defendant’s conduct did not result in materially adverse employment action because the plaintiff acknowledged that she had “never been fired, suspended, demoted, docked in pay, denied a promotion, or reprimanded in writing.” A similar definition applies to retaliatory conduct under the LAD. As the court observed in Hurley v. Atlantic City Police Dep’t, 1998 U.S. Dist. LEXIS 12742 (D.N.J. May 28, 1998), “[R]etaliatory conduct [under the LAD] must affect adversely the terms, conditions, or privileges of the plaintiff’s employment or limit, segregate or classify the plaintiff in a way which would tend to deprive her of employment opportunities or otherwise affect her status as an employee.” Termination, demotion and failure to promote are perhaps the clearest examples of adverse employment actions and ones that few employers would even challenge. But beyond these obvious examples, what conduct on an employer’s part may rise to the level of an adverse employment action? TRANSFERS AND SCHEDULE CHANGES In DiIenno v. Goodwill Indus. of Mid-Eastern Pa., 162 F.3d 235 (3d Cir. 1998), the Third U.S. Circuit Court of Appeals found that transferring an employee to a job the employer knows the employee cannot perform may constitute an adverse employment action. Significantly, the court based its holding on the principle that “what constitutes retaliation depends on what a person in the plaintiff’s position would reasonably understand.” Thus, it was not dispositive, according to the DiIenno court, that the plaintiff’s pay and benefits were not reduced or that the employer considered the two jobs to be equivalent. More important, the court found that a reasonable jury could find that moving an employee from work she had done satisfactorily for more than two years to work she was unable to do was an adverse action and, as a result, the plaintiff’s employment was substantially worsened. Although Mondzelewski v. Pathmark Stores, Inc., 162 F.3d 778 (3d Cir. 1998), arose in the context of a retaliation claim under the Americans with Disabilities Act, its holding is equally instructive to claims under Title VII and the LAD. At issue was whether the change in an employee’s shift could constitute a change in the terms or conditions of employment. The 3rd Circuit found that assigning a worker to an undesirable schedule can qualify as an adverse employment action. Mondzelewski did not appear to turn on the worker’s being financially impacted by the change in shifts. Rather, the evidence he offered concerned the personal consequences of the schedule change; that is, he had none of the free time to which he was accustomed and it required him to work every Saturday evening. Morales-Evans v. Administrative Office of the Courts of the State of New Jersey, 102 F. Supp. 2d 577 (D.N.J. 2000), provides yet another perspective on whether a lateral transfer can qualify as an adverse employment action. In Morales, the plaintiff kept the same position but was transferred, with no change in pay, to an office closer to her home where she would not have to interact with a supervisor with whom she was having problems. Under these facts, the trial court “question[ed] whether the transfer could even be termed [an] ‘adverse employment action.’” Ultimately, the court determined that the plaintiff could not establish a prima facie case of retaliation. And in Horvath v. Rimtec Corp., 102 F. Supp. 2d 219 (D.N.J. 2000), the employer’s refusal to transfer the plaintiff to another job, despite a supervisor’s recommendation, did not rise to the level of an adverse employment action because the plaintiff remained in the same job at the same salary with the same benefits. REPRIMANDS AND EVALUATIONS In Robinson v. City of Pittsburgh, 120 F.3d 1286 (3d Cir. 1997), the 3rd Circuit held that in order to be actionable as retaliation under Title VII, an adverse employment action must alter an employee’s compensation, terms, conditions or privileges of employment. In effect, the retaliatory conduct must itself be violative of Title VII. Applying that principle, the court concluded that allegations of unsubstantiated oral reprimands and unnecessary derogatory comments were not sufficiently adverse to qualify as retaliatory conduct. More recently, in Weston v. Pennsylvania, 251 F.3d 420 (3d Cir. 2001), the issue on appeal was whether written reprimands qualified as an adverse employment action. The trial court found that written reprimands were different from oral reprimands and constituted adverse employment action because of their presumed effect on compensation, terms, conditions or privileges of the plaintiff’s employment. The 3rd Circuit disagreed and refused to characterize two written reprimands as adverse absent a showing by the plaintiff of how the reprimands affected a material change in the terms or conditions of his employment. In fact, the court found that despite the two reprimands, the plaintiff was not terminated, demoted or reassigned, did not have his work schedule, hours or work changed and was not denied a pay raise or promotion. Moreover, the court found it significant that the written reprimands were only temporary and not permanently made a part of the plaintiff’s personnel file. Under these circumstances, the Weston court could not characterize the reprimands as sufficiently adverse to be actionable. In Abramson v. William Patterson College, 260 F.3d 265 (3d Cir. 2001), the 3rd Circuit once again considered the question of what constitutes an adverse employment action under Title VII and the LAD. In particular, the court addressed whether a dean’s recommendation that a professor not be retained would qualify as an adverse employment action. Without any real analysis, the court found that such conduct was sufficient to establish the second element of a prima facie retaliation claim. Similarly, in EEOC v. L.B. Foster Co., 123 F.3d 746 (3d Cir. 1997), the court found that a negative reference was sufficiently adverse to make out a prima facie case of retaliation — even where there was no evidence that the reference had harmed the employee’s ability to get another job. Although Bostic v. AT&T of V.I., 166 F. Supp. 2d 350 (D.V.I. 2001), was a Title VII retaliation case brought in the federal court in the Virgin Islands, it was decided by Judge Stephen Orlofsky of the federal district court in New Jersey. In Bostic, the issue on a Rule 12(b)(6) motion was whether an employee evaluation, “which did not result in any loss of job or tangible status, [could] be a ‘materially adverse’ employment action.” The court decided that a negative performance evaluation could indeed qualify as a materially adverse employment action. Orlofsky agreed with the analysis of Judge Skelly Wright of the District of Columbia Circuit that “[a]n unfavorable employee assessment, placed in a personnel file to be reviewed in connection with future decisions concerning pay and promotion, could both prejudice the employee’s supervisors and materially diminish his changes for advancement” (citing Smith v. Secretary of Navy, 659 F.2d 1113 (D.C. Cir. 1981)). Orlofsky refused to grant the defendant’s motion to dismiss because the plaintiff’s “allegations of a negative performance evaluation does present the possibility that there exists some set of facts on which she has suffered a materially adverse employment action.” Finally, in Khair v. Campbell Soup Co., 893 F. Supp. 316 (D.N.J. 1995), the court considered whether an employee who was rated “3″ out of “5″ on a performance evaluation established that he had suffered an adverse employment action for purposes of his retaliation claim under the LAD. The court held that the plaintiff had satisfied this element of his prima facie case because the rating of 3, which was the lowest overall rating that the plaintiff had ever received, meant that he would get a lower pay increase than if he had been rated a 4 or a 5. HARASSMENT There is no bright-line rule to determine when a number of retaliatory acts taken together — none of which independently constitute a material adverse action — comprise a pattern of retaliation serious enough to affect a materially adverse change in an employee’s work conditions. See Hurley v. Atlantic City Police Dep’t, 1998 U.S. Dist. LEXIS 12742 (D.N.J. May 28, 1998). As the following examples demonstrate, that determination depends on the particular facts of each case. Although Feder v. Bristol-Myers Squibb Co., 33 F. Supp. 2d 319 (S.D.N.Y. 1999), was decided by the U.S. District Court for the Southern District of New York, it involved retaliation claims under, among other statutes, Title VII and the LAD. In Feder, the plaintiff alleged that her employer’s decision to take away one of her job responsibilities was retaliatory in nature. The employer countered by arguing that the plaintiff did not suffer any adverse employment action, but instead benefited from the reorganization because she received a substantial increase in salary and bonus, a more prestigious title and a more coveted reporting structure. The court, however, was unpersuaded by the defendant’s position. By moving that one task out of the plaintiff’s province, the defendant eliminated half of her responsibilities with its associated staff and budgetary authority. The court found it at least arguable that the elimination of these responsibilities was “likely to affect adversely her future promotional and employment prospects, as it takes her out of a business activity in which she now has been engaged for years.” While acknowledging that the plaintiff undoubtedly benefited from the reorganization, the court nonetheless “[could not] say that no reasonable trier of fact could conclude that [plaintiff] suffered a material adverse employment action when responsibility for licensing was taken away from her.” In Hodgkins v. Kontes Chemistry & Life Sciences Product, 2000 U.S. Dist. LEXIS 2293 (D.N.J. March 6, 2000), the court found that even though the plaintiff may have been harassed in the workplace — such harassment manifesting itself in the form of negative comments, pornographic jokes and rude treatment by co-workers — those actions did not affect the terms, conditions or privileges of employment. Relying on Robinson, the court determined that such harassment did not support a claim for retaliation. These were not, however, the only allegations of adverse employment actions in Hodgkins. The plaintiff also claimed that after she filed a discrimination complaint, she suffered diminished overtime. Although the court ultimately concluded that a reasonable fact finder could not find that the plaintiff’s overtime hours were diminished, the court held that if supported by the evidence, such a claim would constitute an adverse employment action necessary to support a retaliation claim. In addition, the plaintiff in Hodgkins offered evidence that immediately after filing her complaint, her supervisor stopped talking with her and ceased providing her with training. This was significant, according to the court, because supervisor training was an important means to improve the work of someone in her job. In addition, her work was suffering from the lack of such training. On summary judgment, the court held that the plaintiff was entitled to the inference that if she received training, she would have taken and passed a promotion test earlier than she did, or, that her work would have been considered at a high enough level to warrant a raise. Consequently, the court determined that she had established a prima facie case of retaliation. Horvath v. Rimtec Corp., 2000 U.S. Dist. LEXIS 10128 (D.N.J. July 19, 2000), also considered what actions constitute an adverse employment action for purposes of establishing a claim of retaliatory discrimination under the LAD. To substantiate his claim that he suffered an adverse employment action, the plaintiff relied on the following: He did not receive a raise at the same time that other employees did; he did not get computer training despite repeated requests for such training; and he was ignored and shunned at some work meetings and was excluded from others. The defendant filed a summary judgment motion, arguing that the plaintiff did not establish that he suffered an adverse employment action and, therefore, could not make out a prima facie case of retaliation. The court agreed. The court held that because the plaintiff ultimately received his raise, which was awarded retroactively, “he did not suffer an adverse employment action.” As for the plaintiff’s other allegations, the court ruled that to establish an adverse employment action, a plaintiff must show that the action “adversely affected [his] professional reputation or ability to gain future employment.” The court then concluded that the plaintiff’s assertions that he was shunned by management and denied computer training did not rise to the level of actionable conduct. According to the court, the plaintiff did not argue or show that those acts adversely affected his professional reputation or ability to gain future employment. Most recently, Judge Joseph Irenas addressed the question of what constitutes an adverse employment action in Marrero v. Camden County Board of Social Services, 164 F. Supp. 2d 455 (D.N.J. 2001). In Marrero, the plaintiff asserted that she was retaliated against on numerous occasions for violating her employer’s dress code, including being sent home from work and being the subject of inappropriate and harassing comments. Ultimately, the plaintiff was forced to leave work due to an anxiety reaction. In viewing the allegations in the light most favorable to plaintiff, the Marrero court found that she had satisfied the second element of her retaliation claim: “In this case, plaintiff’s dress code-related allegations go beyond mild harassment … and involve tangible employment actions which cost her several days pay and, if her testimony is believed, led to her being forced to take a month’s unpaid sick leave.” The only New Jersey state court opinion that addresses in any detail what qualifies as an adverse employment action under the LAD is Shepherd v. Hunterdon Developmental Ctr., 336 N.J. Super. 395 (App. Div. 2001). Shepherd involved two plaintiffs who argued that harassment could form the basis of their retaliation claims. Neither plaintiff, however, alleged that he was assigned different or less desirable tasks or denied employment benefits or monetary raises. First, the Appellate Division issued broad parameters on what may or may not qualify as an adverse employment action in establishing a prima facie retaliation case. On the one hand, the court conceded that it was possible for retaliatory harassment to amount to an adverse employment action, where, for example, the situation created by the defendants was so intolerable that a plaintiff was forced to transfer to a less desirable position. On the other hand, the court also acknowledged that “generally, harassment alone is not an adverse employment action.” Even though one plaintiff was transferred to another position — a transfer that admittedly was not voluntary — ultimately, the court found that the transfer worked out well for him and he was happier in the new assignment. The court went to on declare that “[w]hile there was some stress involved in the transfer, emotional factors alone cannot constitute adverse employment action.” Summary judgment was, therefore, properly granted dismissing his retaliation claim. The other plaintiff fared much better. He alleged that the harassment caused him to take early retirement and constituted a constructive discharge. More specifically, he presented evidence that his employer made his working conditions intolerable over a four-month period and responded only half-heartedly to complaints of harassment that he raised while pursuing internal grievance procedures. He further claimed that he did not want to transfer because there were distinct disadvantages to such a move. Under these circumstances, the court held that the reasonableness of this plaintiff’s decision to choose early retirement was a question of fact to be determined by a jury, thereby precluding the entry of summary judgment against him. More recently, the Appellate Division decided Mancini v. Township of Teaneck, 2002 N.J. Super. LEXIS 165 (App. Div. April 2, 2002), which provides further insight into what action will be considered adverse under the LAD and what factors a court may consider in making that determination. Simply because an employee suffers no loss of pay or benefits may not be enough to carry the day for the employer. The issue is whether the challenged conduct alters the employee’s compensation, terms, conditions or privileges of employment or adversely affects his or her status as an employee. Plaintiffs alleging unlawful retaliation also need be mindful of the burden they face when proving that they suffered an adverse employment action. As the 3rd Circuit observed in Robinson, “‘[N]ot everything that makes an employee unhappy’ qualifies as retaliation, for ‘[o]therwise, minor and even trivial employment actions that an irritable, chip-on-the-shoulder employee did not like would form the basis of a discrimination suit.’” The author is a shareholder in the labor and employment group at Collier, Jacob & Mills of Somerset, N.J.

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