When Does Discipline Become Retaliation?


by Aaron Clark

Clark, Aaron
aclark@mcgrathnorth.com
(402) 341-3070

Employers must always be mindful of retaliation whenever an employee complains about discrimination in the workplace. Once the discrimination allegation has been made, the employee can assert that he or she has engaged in a protected activity. Any future discipline or adverse action against the employee may be construed as retaliation. Many times discrimination complaints are submitted after the employee has received a final warning or has otherwise been subjected to the company’s disciplinary procedure. By making the complaint, the employee (or his or her attorney) may be trying to deter the employer from imposing further discipline.

In a recent case, Devin v. Schwan’s Home Service, Inc., 8th Cir. 2007, the Eighth Circuit helped define the circumstances that will constitute unlawful retaliation.  To prove retaliation, the employee must establish that he or she has been subjected to adverse employment action (of a material nature) which is “causally linked” to the employee’s prior discrimination complaint.  In Devin,  the employee worked as a route manager selling frozen food products door-to-door. Devin made a variety of claims against her supervisor (harassment, constructive discharge, sex discrimination, and equal pay violations). She also alleged that her supervisor retaliated and punished her for reporting discrimination. The alleged retaliation involved criticizing her with a written warning for not soliciting enough new customers, denying her sales assistance and allegedly failing to address her claims for harassment and discrimination at the time of her performance evaluation.

The Eighth Circuit found that each of the alleged “punishments,” even if they were true, did not rise to the level of “materially adverse action” to support a retaliation claim. The court noted that the written warning for failing to solicit new customers was not materially adverse because no negative “consequences” flowed from it. There was no loss of pay or benefits arising from the warning. Under the court’s reasoning, oral or verbal reprimands by an employer, without more, should not constitute retaliation.

Second, the court found that Devin did not establish that the sales assistance she requested would have increased her sales or income. It was the employee’s burden to prove that the denial of such assistance produced significant harm. Devin also failed to establish that the denial of sales assistance would deter a reasonable employee from engaging in a protected activity.

Finally, the employer’s decision to focus on Devin’s future work performance, while allowing her to continue to submit her discrimination complaints, was not a materially adverse action nor did it rise to the level of significant harm. The court found that all of the above actions, even conceived cumulatively, were not “materially” adverse.

The Devin case highlights the two methods to prove retaliatory conduct. In the obvious case, retaliatory conduct would include formal discipline that results in a deprivation of pay or benefits (i.e., suspension or termination). Other forms of discipline may also be deemed “materially adverse.” Retaliation can also be established if the employee has sustained a “real-life” detriment that has impacted his or her willingness to report alleged acts of discrimination in the workplace. In Devin, the court applied a common sense approach to address these issues. The Eighth Circuit viewed the evidence and concluded that Devin was not deprived of anything significant.

Employers must be cautious when disciplining employees who have alleged discrimination. All such discipline should be fully documented and the employer must ensure that the employee is being treated consistently with company policy and past practices. In Devin, the Eighth Circuit recognized that “trivial harms” will not support a cause of action if they do not result in a deprivation of a tangible benefit or otherwise dissuade the employee from reporting discrimination.

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