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Retaliation Claims Fail Because Challenged Acts Were Not
Materially Adverse
The U.S. Supreme Court's 2006 decision in Burlington Northern & Santa Fe Ry. Co. v. White established a more employee-friendly standard for retaliation claims under the discrimination laws. Instead of limiting retaliation claims to "ultimate" employer actions with an adverse economic impact on the employee, such as a termination, the Court there ruled such claims could be made merely by showing that an employer had done something that a "reasonable employee" would find "materially adverse," such that he or she would be deterred by the action from filing an EEOC charge or engaging in other protected activity. Burlington Northern has caused employers to worry that retaliation claims will be recognized, even when based on trivial employee complaints.
However, in a very favorable decision for employers, Somoza v. Univ. of Denver, No. 06-1488 (10th Cir. Jan. 18, 2008), the Tenth Circuit ruled that the treatment received by two employees were not sufficiently significant so as to meet the new standard in Burlington Northern, and therefore, could not support retaliation liability.
Two Mexican-American faculty members in the Spanish section of the Department of Languages and Literature at D.U. alleged that on 13 occasions they engaged in protected activity, such as making internal complaints of unfavorable and biased treatment and hostile work environment. According to the two, their supervisors publicly humiliated them in department meetings, reduced their decision-making authority, allowed a junior colleague to harass them, denied one of them compensation for voluntary duties, and changed the faculty arrangements and organization of the Spanish section. At the district court level, none of the defendant's actions were found to be unlawful retaliation.
On appeal, the Tenth Circuit affirmed the district court's decision, for three reasons. First, the very fact that the plaintiffs continued to make discrimination complaints despite the allegedly retaliatory actions showed that the actions were not sufficiently material so as to dissuade a reasonable employee from engaging in protected opposition to discrimination. Second, many of the actions complained of affected everyone equally, and were not targeted at the plaintiffs or others who had opposed discrimination. Third, the alleged conduct that was directed only at the plaintiffs - such as humiliation at meetings and hostility from a junior colleague - did not meet the Burlington Northern standard. The Court stressed that Title VII is not a "general civility code for the American workplace."
While the Tenth Circuit in Somoza confirmed that the Burlington Northern standard still has limits, employers should remain aware that employees may claim any workplace indignity or slight is the basis for a retaliation claim and be prepared to provide a non-retaliatory explanation for any challenged action.
Sherman & Howard has prepared this advisory to provide general information on recent legal development that may be of interest. This advisory does not provide legal advice for any specific situation. This does not create an attorney-client relationship between any reader and the Firm. If you want legal advice on a specific situation, you must speak with one of our lawyers and reach an express agreement for legal representation.
© 2008 Sherman & Howard L.L.C. March 3, 2008