Connecticut Employment Law Blog : Connecticut Employment Lawyer & Attorney : Daniel Schwartz : Stamford, Hartford New Haven, CT

 A decision last week by the Second Circuit might seem fairly trivial. After all, the Court stamped a "summary order" in the case of Cunningham v. NY State Dept. of Labor (download here)  on June 10, 2009 thereby making sure the case doesn't have precedential effect.

But employers shouldn't ignore this decision; it illustrates the differences between retaliation and discrimination claims and the relatively low standard necessary to bring a claim of retaliation and get such a claim before a jury.

The case discusses what is an "adverse employment action".

 Without getting too technical, think of an adverse employment action as something that an employer does that is bad enough that the employee can then sue.  

After all, ordinary everyday work grievances are not enough; the employer must do something more than that in order for the employee to then be able to bring a claim. 

But is it possible for an employer to take an adverse action that is not enough to support a claim of discrimination, but IS enough to support a claim of retaliation? The court answers that question "yes" in Cunningham.  

In Cunningham, the employee claimed that he was reassigned from a fifth-floor office to a first-floor office (among other things).  The court said that this was not enough to state a claim for discrimination. In other words, that claim isn't the type of "adverse employment action" that can support a discrimination claim. 

But the employee's retaliation claim survives because the standard of what an "adverse employment action" is different and less demanding for those claims.

The Second Circuit concludes that "[i]n a retaliation claim, '[w]hether a particular reassignment is materially adverse depends upon the circumstances of the particular case, and should be judged from the perspective of a reasonable person in the plaintiff’s position, considering all the circumstances.'”

The court goes on to state that "a retaliation plaintiff must “present evidence sufficient to create a genuine triable issue as to whether the reassignment to which he was subjected could well have dissuaded a reasonable employee in his position from complaining of unlawful discrimination.'”

You might scratch your head at first but you've read that correctly: the Court is, in essence, saying that reassignment of an office isn't enough to bring a discrimination claim over, but is enough (at least here) to bring a retaliation claim.  Put another way, different standards apply to both claims.

What's the takeaway for employers? As I've stated previously for retaliation claims, careful documentation of the decisions you make as well as consistency, can help minimize the risk that the claims will go anywhere. But as this case demonstrates, it's not going to take a lot for an employee to be able to satisfy the low burden necessary to keep such a claim alive.

(H/T Wait a Second)

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It's a common observation among employment lawyers that employers can be sued for lots of on-the-job actions that don't lead to termination.  Whether that employee, however, will prevail on the claim is an entirely different question. A case yesterday decided by the United States District Court of Connecticut highlights that distinction.

In Charles v. State of Connecticut, Judicial Branch (download here), an African-American probation officer claimed that she was denied a request to transfer because of her race.  She requested a transfer from the Milford, Connecticut office, where she performed  supervisory functions, to the New Haven office where she would  perform intake functions. It was undisputed that although her responsibilities would change after the transfer, there would be no change in her pay or benefits.  The position was ultimately filled with a white woman whose skills better matched the position description.

On a summary judgment motion by the employer, Senior Judge Dominic Squatrito  found that the employee did not establish a claim for race discrimination because, among other things, she did not suffer an "adverse employment action".

What is an adverse employment action? The Court looked to some other cases in the transfer context to find:

“If a transfer is truly lateral and involves no significant changes in an employee’s conditions of employment, the fact that the employee views the transfer either positively or negatively does not of itself render the denial or receipt of the transfer [an] adverse employment action.’” Nevertheless, “[a] lateral transfer that does not result in a reduction in pay or benefits may be an adverse employment action so long as the transfer alters the terms and conditions of the plaintiff’s employment in a materially negative way.”

Here, the employee admitted that her salary and benefits were unaffected, but argued only that her transfer hurt her chances to be promoted in the future.  The Court rejected that argument saying that there was no evidence that the transfer denial would affect her in the future. Indeed, because she already had experience in the "intake" function (a reason the employee claimed she needed the position), the Court saw no reason why this denial would hurt her in the future.  Ultimately, what was telling to the court is that:

her pay was never adversely affected; she was never demoted, disciplined, suspended or terminated; and her job title was never adversely changed. Indeed, [the employee] admits that not being transferred to the New Haven office did not adversely affect her, and that she has not  experienced any sort of adverse employment action as a result of her not obtaining the transfer.

In short, the Court seems to view this dispute as nothing more than a kerfuffle. Or much ado about nothing. 

So what's the takeaway for employers in other cases? Two things.

• First, this should confirm for employers that a very small number of employees may sue for anything -- no matter how trivial.  Good documentation and support for decisions (that are obviously non-discriminatory) are cruicial to getting these claims defeated.
• Second, a good human resources practice that recognizes employees desire to get ahead and that works with those employees to develop a career path, can help employees see more options than they might otherwise have.  HR should not simply be about discipline and discharge, but working with supervisors and employees to allow employees to work to their fullest potential.

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After an employee complains about discrimination, if an employer terminates the employee a year later, can that fact -- in and of itself -- be a sufficient grounds for a retaliation? A District Court decision released yesterday said no.

In Thornewell v. Domus Foundation, Inc.,U.S. District Court Judge Alvin Thompson dismissed outright a retaliation claim where the Plaintiff alleged only that his prior complaint was the basis for his termination a year later:

[The employee] only alleges that he “complained about the discriminatory treatment that he[experienced]” (Compl. at 7), and that he was later terminated. [The employee] alleges that the date of his last complaint was June 3, 2004 and that he was terminated as of May 1, 2005. Id. at 7, 9. Standing alone, these allegations are not sufficient to state a claim for retaliation because the alleged retaliation occurred nearly a year after the protected activity (i.e. the complaints). See Clark County School District v. Breedon, 532 U.S. 268, 273 (April 23, 2001) (per curiam), reh’g denied 533 U.S. 912 (June 11, 2001) (citations omitted) (noting that temporal proximity between an employer's knowledge of protected activity and an adverse employment action must be “very close”).

The decision is another indication that courts are starting to look for more substance in retaliation claims other than just the filing of a complaint and a termination.  The Court went on to note in the case that although the Plaintiff did allege other facts in support of his retaliation claim, he did not note the dates of those; thus, the court did not view such allegations as relevant to the inquiry.

For employment practitioners and companies that appear before Judge Thompson, the decision is interesting because of the judge's own statements that he disfavors dismissing employment claims on the papers. His chamber practices statement indicates that he believes that:

dispositive motions are overused. In discrimination cases, he rarely grants motions for summary judgment that dispose of the entire case.

True to his word, he refused to dismiss an accompanying Title VII discrimination claim and a disability discrimination claim.

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Do you like tricks or treats? Depending on your perspective, you'll either find something to like or dislike about a decision just issued by the District Court of Connecticut. 

Judge Vanessa Bryant -- who has been busy issuing decisions and posting them online seemingly every few days -- granted a summary judgment motion by an employer, where the employee had claimed that she was retaliated against for filing a discrimination claim the prior year.  The court found no temporal link between the complaint and the "adverse employment action". 

In Anderson v. Department of Children & Families, State of Connecticut, (Civil Action No. 3:05-cv-00167) (October 30, 2007), the Plaintiff had previously filed discrimination claims in both federal court and the CHRO in 1996 and 1997 (Her prior discrimination claims were dismissed in 1999). 

According to the decision, in 2002, Elizabeth Anderson filed a new charge with the CHRO claiming race discrimination and retaliation. In late 2003, her employer, Department of Children & Families (DCF) placed her on administrative leave and investigated her for violating DCF policy. DCF ultimately reprimanded her and ordered her to return to work on March 12, 2004. She then filed suit in federal suit claiming claiming that DCF’s investigation and reprimand constitute retaliation. DCF countered that the investigation and reprimand were unrelated to Anderson’s CHRO complaints.

DCF ultimately moved for summary judgment submitting a memorandum of law and a statement of undisputed facts stating, among other claims, that the temporal proximity between the CHRO complaint in 2002 and the alleged retaliation in 2003 was insufficient to establish retaliation.  The Plaintiff submitted her opposition brief (and somehow also claimed summary judgment as well, though the court later dismissed that as "moot".) 

The court agreed with DCF:

As to the final requirement of a prima facie case, Anderson must show a causal connection between her protected activity—her 2002 CHRO complaint—and the adverse employment action—DCF’s investigation and reprimand in late 2003. Anderson relies on the concept of temporal proximity to establish the necessary causal connection. However, “[t]he cases that accept mere temporal proximity between an employer’s knowledge of protected activity and an adverse employment action as sufficient evidence of causality to establish a prima facie case uniformly hold that the temporal proximity must be very close . . . .” Clark County School Dist. v. Breeden, 532 U.S. 268, 273 (2001) (citing cases holding that three or four months between the protected activity and the adverse action is insufficient to establish causality in the absence of other evidence). In the present case, if DCF intended to investigate and reprimand Anderson in retaliation for her 2002 CHRO complaint, it could have done so much earlier than late 2003. Anderson has failed to satisfy the final requirement of a prima facie case.

The court's reasoning is an interesting use of logic and one that is used by employers in defending itself in other cases too. Employers often suggest: If I wanted to retaliate, why would I wait a year to do so? The court here, at least, found that logic convincing enough to throw out a retaliation claim.  That is even more important here because the plaintiff had previously filed discrimination claims as well. If there was a case where an employer could be assumed to be "angry" for all the claims filed by the Plaintiff, this would be one. But the court refused to bite.

For employers considering employment action against employees who file discrimination claims, the case provides some support for the proposition that it can still take such action after a sufficient amount of time has passed. How much time? Clearly here, 15 months was enough. Could it be shorter? Certainly and the court's reference to a Supreme Court case of 3-4 months suggests that.  

Avoiding retaliation claims should be a key concern for any employer who has had an employee file a discrimination clam. But the employer should not run scared out of each and every employment decision it needs to make. With a bit of a time buffer and more support for the decision, an employer can reduce the risk of liability on an inevitable retaliation claim. 

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