N.D. Iowa Applies Recent Supreme Court Case that Resolved Split Re What Types of Actions Qualify as “Adverse Employment Actions”
Per Podkovich v. Glazer’s Distributors of Iowa, Inc., --- F. Supp. 2d ---, 2006 WL 2326930 (N.D. Iowa Aug. 10, 2006):
Before discussing the parties' shifting burdens under McDonnell Douglas once a prima facie case has been adequately demonstrated, a brief discussion of the second element [that employee suffered an adverse employment action] of the prima facie case in Title VII cases is warranted in light of a very recent United States Supreme Court opinion--Burlington Northern & Sante Fe Railway Co. v. White, 126 S.Ct. 2405 (2006). In White, the Court clarified the scope of Title VII's anti-retaliation provision and resolved a circuit split over what types of actions qualify as "adverse employment actions." See generally Burlington N. & Santa Fe Ry. Co. v. White, 126 S.Ct. 2405, (2006). Prior to White, some circuits applied the same standard for retaliation that they applied to a substantive discrimination offense, holding that the disputed action must "resul[t] in an adverse effect on the 'terms, conditions, or benefits' of employment." See id. at 2410 (citing White v. Burlington N. & Sante Fe Ry. Co., 364 F.3d 789, 795 (6th Cir.2004); Von Gunten v. Maryland, 243 F.3d 858, 866 (4th Cir.2001); Robinson v. Pittsburgh, 120 F.3d 1286, 1300 (3d Cir.1997)). Other circuits, such as the Fifth and the Eighth Circuits, adopted an even more restrictive approach employing an "ultimate employment decisio[n] standard, which limited actionable retaliatory conduct to acts " 'such as hiring, granting leave, discharging, promoting, and compensating.' " Id. (citing Mattern v. Eastman Kodak Co., 104 F.3d 702, 707 (5th Cir.1997); Manning v. Metro. Life Ins. Co., 127 F.3d 686, 692 (8th Cir.1997)). In contrast, the Seventh and D.C. Circuits required the plaintiff to show that the " 'employer's challenged action would have been material to a reasonable employee,' " which essentially means that it would have likely " 'dissuaded a reasonable worker from making or supporting a charge of discrimination.' " Id. at 2410-11. (quoting Washington v. Ill. Dep't of Revenue, 420 F.3d 658, 662 (7th Cir.2005) (citing Rochon v. Gonzales, 438 F.3d 1211, 1217-1218 (D.C.Cir.2006)). Finally, the Ninth Circuit, in accord with EEOC guidance, required the plaintiff to merely establish " 'adverse treatment that is based on a retaliatory motive and is reasonably likely to deter the charging party or others from engaging in protected activity.' " Id. at 2411 (quoting Ray v. Henderson, 217 F.3d 1234, 1242-43 (9th Cir.2000). The majority opinion, authored by Justice Breyer, agreed with the formulation employed by the Seventh and D.C. Circuits. Thus, in the Court's view, the anti-retaliation provision, unlike the substantive provision of Title VII, is not limited to discriminatory actions that affect the terms and conditions of employment. Rather, 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.' " Rochon, 438 F.3d at 1219 (quoting Washington, 420 F.3d at 662.
Consequently, based on the Court's guidance in White, Podkovich does not have to demonstrate a link between the challenged retaliatory action and the terms, conditions or status of employment. Rather, pursuant to the Court's pronouncement in White, she can rely on retaliatory acts and/or harms that extend beyond workplace-related or employment-related retaliatory acts and harm. Id. at 2414 ("The scope of the anti-retaliation provision extends beyond workplace-related or employment-related retaliatory acts and harm”).