The recent decision in Raffaele v. Potter reinforces that “unfairness” does not necessarily amount to a violation of the anti-discrimination laws.

According to the Jan. 5 opinion from the U.S. District Court for the Eastern District of Pennsylvania, Michael Raffaele was the senior officer at, and the postmaster of, the Warminster, Pa., post office. During a six-month period from late 2007 to early 2008, he submitted multiple hiring requests to the postal district’s human resources management board. The board, however, addressed only one of his requests, when it approved all six of his hiring requests.

Delay Resulted in Understaffing

Raffaele believed that, although the board approved his requests in one stroke, the delay in acting on his ongoing requests severely hampered the operations of his office, resulting in the office operating with insufficient staff for “‘more than one year,’” the opinion said. Raffaele said that this, in turn, required him to spend extra time managing the office, while he had to “‘deal with employees’ anger and frustration stemming from understaffing,’” according to the opinion. On a more personal level, Raffaele complained that the board’s inaction adversely impacted the performance of the office, which negatively affected his merit and retirement pay. Finally, Raffaele blamed the working conditions in the office for the fact that he received low performance ratings in a number of categories in 2007.

Raffaele compared his treatment by the board with a number of other postmasters, but, in particular, the younger, female postmaster of the Norristown, Pa., office, Lisa Layman. As such, Raffaele complained that he had been subjected to both age and gender discrimination. He also claimed that he had been retaliated against for filing his EEOC charge, based on the regional human resources manager, Lisa Jordan, allegedly stating that Raffaele “‘did not know who he was dealing with’” after she learned of his charge, according to the opinion.

Following discovery, the U.S. Postal Service moved for summary judgment on all claims.

Job Difficulty Not Materially Adverse

The court first addressed Raffaele’s claim of disparate treatment — dismissing this claim on the grounds that he had failed to provide evidence of an “adverse employment action” sufficient to support a cause of action. Specifically, the court found that an “adverse employment action” is “an action by an employer that is serious and tangible enough to alter an employee’s compensation, terms, conditions or privileges of employment.”

In this case, although Raffaele claimed that his merit and retirement pay suffered because of discriminatory understaffing, the facts were that he received the highest pay increase of his career during the years in question.

Raffaele argued that the court should apply the more lenient standard that a prima facie case could be based on an adverse action that simply “affects” the terms and conditions of employment — rather than “materially affects” employment. The court rejected this argument, finding that a material change is generally a termination, demotion or a significant loss of pay, benefits, title or responsibility. In this case, the court said, although Raffaele’s job was clearly made “more difficult by the staff shortages … none of the changes … amounts to anything more than would be expected from an experienced manager during difficult financial times.”

Poor Evaluation Needs More

The court also rejected Raffaele’s assertion that his negative evaluation, in itself, was an adverse employment action. To the contrary, although Raffaele’s evaluation was less than stellar, he received a pay increase. Notably, however, the court observed that “even a negative evaluation that results in a less than expected wage increase is not a per se adverse employment action.”

Raffaele’s claim of disparate treatment also failed because, while his concerns demonstrated possible unfairness on the part of the board, he was unable to establish facts that any or all of the postmasters with whom he compared himself were treated differently or better because of their age or gender. The argument that Layman was the proper “comparator” was rejected on the grounds that a discrimination plaintiff cannot “selectively pick out one comparator when others are available.”

No Retaliation by Harsh Comment

Finally, the fact that Raffaele felt threatened by the HR manager’s alleged comment that he “did not know who he was dealing with” did not support a claim of retaliation — which requires conduct that would dissuade a reasonable employee from engaging in protected activity. The court found that the “adverse action” standard in the retaliation context is entirely objective and that the “evaluation of whether an action was adverse does not consider the subjective feelings of the employee alleging retaliation.”

As such, because there was no evidence that the manager took any negative action toward Raffaele, his retaliation claim failed.

“Words alone, even when harsh, do not constitute an adverse action if they are unaccompanied by follow-up discipline or other negative action,” the court said. Summary judgment was, therefore, granted to the U.S. Postal Service on all counts.

As noted, this case is useful to remind all parties in the workforce, and their counsel, that unfairness or harsh treatment does not necessarily rise to the level of discrimination. •

Sid Steinberg is a partner in Post & Schell’s business law and litigation department. He concentrates his national litigation and consulting practice in the field of employment and employee relations law. Steinberg has lectured extensively on all aspects of employment law, including Title VII, the FMLA and the ADA.