Eighth Circuit Affirms That Retaliation Requires Injury or Harm to the Employee


by Aaron Clark

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

When an employee complains about discrimination or harassment in the workplace, the employer must be mindful of retaliation claims.  Under Title VII and state discrimination laws, the alleged victim of discrimination or harassment may claim that they engaged in a protected activity and any future discipline or adverse action taken against them constitutes retaliation.  It is not an uncommon tactic for an employee to make a discrimination complaint after receiving a final notice or other discipline from the employer.  By submitting the complaint, the employee (or his or her attorney) may be trying to deter the employer from imposing future discipline based on a concern that the employer’s actions may be construed as retaliation.

In a recent case, the Eighth Circuit affirmed the standard for determining when an employee has been subject to “material adverse action” to support a retaliation claim.  To prove retaliation, the employee must establish that the alleged action was “materially adverse to dissuade a reasonable person from engaging in protected activity.”  In the recent case Littleton v. Pilot Travel Centers, the Eighth Circuit held that a “materially adverse action” cannot be “trivial” and must be sufficient to produce “some injury or harm” to the employee.

Littleton filed a charge of discrimination alleging that he had been denied pay increases because of his race.  Approximately seven months after the charge was filed, Littleton was disciplined after he spread rumors about an Assistant Manager.  He claimed that the Assistant Manager was dishonest and also spread rumors regarding his sexual orientation.  The Assistant Manager, in turn, complained that he was being harassed and mistreated by Littlejohn.  Littleton was issued a “correction notice” advising that if the problem was not corrected, it would “result in immediate termination of employment.”

The Eighth Circuit held that an employee must prove some injury or harm in order to demonstrate that an employer’s actions were “materially adverse.”  Here, the employee did not “suffer a loss of pay or hours, his responsibilities did not change, and he was not excluded from any training or mentorship available to other employees.”  The court noted that the “final notice” received by Littleton could be considered “materially adverse” but this would be determined by the “context” surrounding the employer’s action. The court noted that the company investigated the matter before issuing the correction notice.  There was no “causal connection” between the issuance of the notice and the previous complaint of discrimination (7 months earlier).  Thus, the retaliation claim was subject to dismissal as a matter of law.

An employer should always proceed with caution before imposing discipline or taking action against an employee who has previously complained about discrimination in the workplace.  As noted in Littleton, a retaliation claim will not exist unless an employee can demonstrate that he or she sustained some injury or harm as a result of the employer’s action.

  • “Materially adverse” action would include termination of employment, a demotion with a decrease in wages or salary, a less distinguished title, a material loss of benefits, or a significant reduction in job responsibilities.
  • In the Eighth Circuit, it is unlikely that the following would be considered “materially adverse”:  verbal counseling regarding job performance; a written warning that does not result in a suspension, loss of pay or a final warning; a change in job responsibilities that does not result in a loss of rank, title or significant authority.
  • Even if the employee can establish that the employer’s action was “materially adverse,” the employee must prove a causal connection between the employee’s protected activity (i.e., the complaint of discrimination) and the action taken by the employer.  In Littleton, the employer was successful because a significant amount of time had passed between the employer’s action and the employee’s charge of discrimination (approximately seven months).  In addition, the Court found that the company conducted an investigation in response to complaints about the employee, and had a legitimate reason to impose the final notice.
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