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The average jury award in employment discrimination lawsuits has more than doubled in the last five years, now topping $221,000, according to Jury Verdict Research. With greater frequency, these actions now include not just discrimination claims, but also retaliation claims, which a regional attorney for the Equal Employment Opportunity Commission recently described as the “growth industry” of discrimination law. This article reviews the tests used by the courts to assess what is, and what is not, “retaliatory enough” to trigger a cause of action, focusing on the middle road taken by the 2nd U.S. Circuit Court of Appeals, which leaves employers and practitioners without a bright-line test. PRIMA FACIE CASES In order to state a prima facie case of retaliation under Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, or the Age Discrimination in Employment Act, a plaintiff must show that he or she was subjected to “adverse employment action.” The 5th and 8th Circuits have defined the phrase restrictively. The 1st, 7th, 9th, 10th, 11th and D.C. Circuits have defined the phrase expansively. Last year, the 2nd Circuit confirmed its unwillingness to join either camp. [FOOTNOTE 1] There is no consequential difference among the circuits as to the elements of a prima facie case. The elements are participation in a protected activity known to the defendant; an “adverse employment action”; and a causal connection between the protected activity and the adverse employment action. [FOOTNOTE 2] The most obvious form of adverse employment action is termination, and there is no question in any circuit that plaintiffs who show that they were terminated because they complained about discrimination can state a cause of action. Nor is there any debate that concrete actions like a reduction in hours or demotions are sufficiently “adverse.” Because most retaliation cases arise in the context of terminations, where the stakes are high enough to justify the initiation of a lawsuit in the first place, the element most frequently at issue is causation; i.e., whether the concededly “adverse employment action” was proximate enough in time to plaintiff’s protected activity, or connected in some more direct way with the protected activity. However, when the alleged action is something less than termination, the contention may turn to an analysis of the “adverse employment action” element, even if the employer concedes causation. TWO CAMPS It is relatively easy to tell what is “adverse enough” in the 5th and 8th Circuits. These courts have held that only “ultimate employment actions,” which they have defined as “hiring, granting leave, discharging, promoting, and compensating” are sufficient to constitute adverse employment action. [FOOTNOTE 3] By contrast, pretty much anything goes in the 1st, 7th, 9th, 10th, 11th and D.C. Circuits. There, a wide variety of “disadvantageous changes in the workplace,” ranging from negative job evaluations, to transfers to a less desirable office, to elimination of lunch breaks, constitute adverse employment actions. [FOOTNOTE 4] But things are not so simple in the 2nd Circuit, where “adverse employment action” is defined as a “materially adverse change in the terms and conditions of employment.” [FOOTNOTE 5] In Weeks v. New York State Division of Parole, 273 F.3d 76, 85 (2001), the court offered the following amplifications of its standard: An “adverse change in the terms and conditions of employment” must be “more disruptive than a mere inconvenience or an alteration of job responsibilities,” and a “material” adverse change may be indicated by “a termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices… unique to a particular situation.” (emphasis added). This is the kind of amorphous standard, no matter how well-reasoned, that gives practitioners fits. In Richardson, the plaintiff was transferred to a less desirable position, requiring her to work in closer proximity to the prison population. The court held that the transfer was adverse enough. In Weeks, the court concluded that a disciplinary notice and a counseling memo were insufficient, and that a lateral transfer was not adverse enough. [FOOTNOTE 6] Both opinions relied upon the court’s own earlier decision in Wanamaker v. Columbian Rope Company, 108 F.3d 462, 465 (2d Cir. 1997). There, the court refused to define adverse employment action “solely in terms of job termination or reduced wages and benefits”; held that “less flagrant reprisals by employers” may also be adverse; and cautioned, on the other hand, that “‘not every unpleasant matter short of [discharge or demotion] creates a cause of action’ for retaliatory discharge.” [FOOTNOTE 7] Certain guidelines have emerged from factual scenarios considered by the courts in the 2nd Circuit. TRANSFERS No area better illustrates the importance of a careful factual analysis than transfers. Not every transfer is “adverse,” but then many transfers are adverse enough. For instance, in Weeks, the 2nd Circuit distinguished a transfer from a demotion, holding that a lateral transfer, which involved a shift of the plaintiff’s responsibilities from location A to location B and reassignment of plaintiff’s cases to other parole officers, was insufficiently adverse. By contrast, in Gallagher v. Delaney, 139 F.3d 338 (2d Cir. 1998), the court held that a transfer of a secretary was “adverse” enough because it was not “lateral” enough; i.e. plaintiff’s salary and benefits remained the same, but she was transferred to a less prestigious position, both in terms of location and customer interaction. That, the 2nd Circuit found, was enough to distinguish her transfer from the one held to be insufficient in Weeks. The courts in this circuit have consistently found transfers accompanied by negative baggage of one kind or another to be sufficiently “adverse.” In Pazamickas v. New York Office of Mental Retardation and Development Disabilities, 963 F.Supp. 190, 195 n.6 (N.D.N.Y. 1997), the court held that plaintiff’s reassignment to a work location, with the same salary and benefits but an increased commute of 16 hours a week, qualified. And in Zerilli v. New York City Transit Authority, 973 F. Supp. 311, 314 (E.D.N.Y. 1997) — affirmed in part, vacated in part on other grounds, 162 F3d 1149 (2d Cir. 1998) — the court found that a transfer to a location lacking in amenities adverse enough. It follows a fortiori that removal from a supervisory to a staff position constitutes adverse employment action, and so at least one court in this circuit has held. Finally, an employer who retaliates by changing the work assignment at the same location, without a transfer, will face the same consequences. In Neratko v. Frank, 31 F. Supp.2d 270 (W.D.N.Y. 1998), a male postal clerk alleged that his employer retaliated against him with a “disproportionate amount of physically strenuous, dirty, and dusty work (e.g., unloading trucks, dumping mail from sacks, stacking sacks, shoveling snow, and washing vehicles).” The court found the change to be material: “While trivial and inconsequential matters will not qualify as adverse employment actions, changes that significantly detract from a plaintiff’s working conditions are more than trivial or inconsequential inconveniences.” REPRIMANDS/WARNING LETTERS The decisions of various courts in the 2nd Circuit, which have held that reprimands and warning letters may rise to the level of adverse employment action, have been at least implicitly overruled by Weeks. In that case, the court held that neither a “notice of discipline” for misconduct, nor a “counseling memo” criticizing the officer’s actions while taking a parolee into custody, constituted adverse employment action. The court reasoned that criticism of an employee is part of training and is “necessary to allow employees to develop, improve and avoid discipline.” Just recently, the court held that “threats of disciplinary action and excessive scrutiny do not constitute adverse employment actions in the absence of other negative results such as a decrease in pay or being placed on probation.” [FOOTNOTE 8] NEGATIVE JOB EVALUATIONS The same analytical framework has been used to determine when negative job evaluations constitute “adverse employment action.” In Dortz v. City of New York, 904 F. Supp. 127, 156 (S.D.N.Y. 1995), the court held that receipt of sudden negative evaluations, when plaintiff had not received negative evaluations in the past, coupled with a heightened level of supervision, are examples of ways in that the employer’s actions “disadvantaged, and interfered with, [plaintiff's] ability to perform her job, which could support the conclusion that plaintiff suffered from adverse employment action.” Even if causation is shown, however, not all negative evaluations constitute adverse employment action. In Payne v. State of New York Power Authority, 997 F. Supp. 492, 500 (S.D.N.Y. 1998), for example, the court held that a negative evaluation received subsequent to filing a discrimination complaint did not constitute adverse employment action for purposes of a retaliation claim, standing alone. Similarly, plaintiff’s conclusory allegations that she deserved “excellent” rather than “average” performance evaluations were found insufficient. [FOOTNOTE 9] AFFECTING FUTURE EMPLOYMENT Acts that have no immediate impact, but that could negatively affect future employment opportunities or advantages, also have fallen on both sides of the “adverse” line. In Wanamaker, the 2nd Circuit held that an employee, whose office and telephone were taken away when he was told he would be terminated, did not suffer adverse employment action. But the court warned that: [T]he loss of “tangible future employment objectives” may constitute adverse employment action and listed as examples “blacklisting” of a former employee, wrongfully refusing to write a recommendation to prospective employers on behalf of an employee, and actions that damage the employee’s reputation. CONCLUSION It is not enough for plaintiffs to show that their protected activity caused the employer to take certain actions against them. They must also show that the action constituted “adverse employment action,” and not everything fits that bill in the 2nd Circuit. David M. Wirtz is a partner at Grotta, Glassman & Hoffman, www.gghlaw.com. Anna Pintsov is an associate at the firm.

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