5th Circuit Limits Meaning of Adverse Employment Action

For the last couple of years, employers have been grappling with the U.S. Supreme Court's expansion of what constitutes an "adverse employment action" sufficient to support a retaliation claim. In its Burlington decision,¹ the Court instructed that any act which might "dissuade a reasonable worker from making or supporting a charge of discrimination" could be considered an "adverse employment action." This was a far cry from what many circuits, particularly the Fifth Circuit had always required - changes in the terms and conditions of employment such as termination, demotion to a lower-paying position or suspension without pay. Moreover, the new Burlington standard was very open-ended and not at all conducive to dismissal of the claim via summary judgment.

Just over a week ago, however, the Fifth Circuit provided some guidance and, arguably, some restrictions, as to what kind of situation might "dissuade a reasonable worker from making or supporting a charge of discrimination." In Holloway v. Department of Veterans Affairs, et al.², the Fifth Circuit interpreted the Burlington "adverse employment action" standard to require some "material adversity" to the employee and further provided some examples of statements which would not constitute an "adverse employment action."

Warren Holloway had filed several EEOC complaints while he worked for the Department of Veterans Affairs in 1997. In the year following those complaints, Holloway's supervisor allegedly told some of Holloway's co-workers that Holloway was "creating problems by filing EEO complaints." Two years later, the Department terminated Holloway because he had failed to file security clearance paperwork. Holloway subsequently alleged numerous instances of discrimination and retaliation. The Department obtained summary judgment as to his claims. As of the Fifth Circuit 's most recent review of his case, Holloway had dropped all allegations of discrimination and retaliation except for his assertion that his supervisor's 1998 remark constituted an adverse employment action in retaliation for his prior EEOC complaints.

The Fifth Circuit held that the supervisor's remark to Holloway's co-workers about Holloway creating problems by filing EEO complaints was not an adverse employment action under the Burlington standard, meaning that it was not an act that would dissuade a reasonable worker from making or supporting a claim of discrimination. In so holding, the Fifth Circuit relied heavily on language from the Burlington decision and on the characteristics of the communication itself.

The Fifth Circuit reiterated the Burlington court's instruction that, "a plaintiff must show that a reasonable employee would have found the challenged action materially adverse, which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination." The Fifth Circuit further pointed to the Burlington court's admonitions that anti-retaliation laws protect employees "from retaliation that produces an injury or harm," and that " material adversity ... separate[s] significant from trivial harms" because "Title VII . . . does not set forth 'a general civility code for the American workplace'" where such "petty slights or minor annoyances" would be a violation of the Act.

Based upon these standards, the Fifth Circuit held that Holloway's supervisor's remarks were not "materially adverse" and, therefore, not actionable because:

the remark was made only once

the remark was not made directly to Holloway

no adverse consequences immediately followed the remark

In support of its holding, the Fifth Circuit pointed to similar decisions from other courts where no adverse employment action had been found:

when a supervisor warned an employee to stop talking about his EEOC complaint during business hours and threatened him with disciplinary action if he did not³

when a supervisor told a plaintiff's co-workers that he would get rid of the plaintiff because he was creating problems with his discrimination complaints⁴

when a supervisor was "badmouthing or being mean" to an employee in the workplace⁵

So what does this mean in the employment retaliation landscape? In the Fifth Circuit, at least for now, a single negative comment without immediate negative consequences should not constitute an adverse employment action. This should alleviate the general fear that workplace discussions about an EEOC charge could be deemed retaliatory. Nonetheless, employers should continue to preclude any such discussions because there will always be the concern that the particular remark or discussion "would dissuade a reasonable worker from making or supporting a claim of discrimination," since the analysis considers the totality of the circumstances. Also, of course, what may dissuade a reasonable worker from making or supporting a claim of discrimination is still a fluid thing and could always expand with future court decisions.

¹Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53 (2006).

²Holloway v. Dep’t of Veterans Affairs, et al., No. 08-20212 (5th Cir. Feb. 5, 2009) (unpublished).

³Jones v. Johanns, 264 F.App'x 463 (6th Cir. 2007)

⁴Thomas v. iStar Fin., Inc., 438 F.Supp. 348, 366 (S.D.N.Y. 2006)

⁵Roldan v. Chertoff, No. 04CV2515, 2006 WL 4632503 at *12 (S.D.Cal. Oct. 19, 2006)