M.D. Florida Notes Former Split Re What Constitutes an Adverse Employment Action in Retaliation Claim Under Title VII

Per Bothwell v. RMC Ewell, Inc., Slip Copy, 2007 WL 2254496 (M.D.Fla . Aug 03, 2007) (NO. 804-CV-1270T-17-MSS):

Prior to Burlington, a split existed among the Circuits regarding what constitutes an adverse employment action with respect to a retaliation claim under Title VII and, therefore, the ADEA. See Burlington, 126 S.Ct. at 2410. Whereas some Circuits, such as the Fifth, Sixth and Eighth, considered an employment action to be adverse only if it resulted in a materially adverse change in the terms and conditions of employment, other Circuits, such as the Seventh, Ninth and District of Columbia, considered an employment action to be adverse where a plaintiff was able to show that a reasonable employee would have found the challenged action materially adverse. See id. at 2410-11. Because of these varying interpretations, the Supreme Court decided to adopt a uniform standard to be applied to all Title VII and ADEA retaliation claims across the Circuits. See id. at 2411.

In Burlington, the Supreme Court concluded that "[t]he scope of the anti-retaliation provision extends beyond workplace-related or employment-related retaliatory acts and harm," thereby "reject[ing] the standards applied in [those] Courts of Appeals that ... limited actionable retaliation to so-called 'ultimate employment decisions.' " Id. at 2414. In conjunction with this interpretation, the Supreme Court adopted a similar standard applied by the other Courts of Appeals, including the Seventh, Ninth and District of Columbia Circuits. See id. at 2415. Under the adopted standard, in order for a plaintiff to prove that he or she was subjected to an adverse employment action in a retaliation claim, "[the] plaintiff must [only] show that a reasonable employee would have found the challenged action materially adverse," which means that the challenged action would have "dissuaded a reasonable worker from making or supporting a charge of discrimination." See id.

"Although not cited by the Supreme Court [in Burlington ], the Eleventh Circuit [previously] articulated substantially the same standard [for a retaliation claim] in Doe v. Dekalb County Sch. Dist., 145 F.3d 1441, 1447 (11th Cir.1998)." Reis v. Universal City Dev. Partners, Ltd., No. 6:05-cv-613-Orl-19JGG, 2006 WL 2054178, at *13 (M.D.Fla. July 21, 2006). "Like the Supreme Court in [ Burlington ], the Eleventh Circuit established an objective, reasonable person standard," and "stressed that '[a]ny adversity must be material.' " Id. (summarizing the standard outlined in Doe ). The standard adopted in Doe also reflected prior decisions of the Eleventh Circuit such as Wideman, where the Eleventh Circuit expressly "join[ed] the majority of circuits which have ... [held] that ... protection against retaliatory discrimination [under Title VII and the ADEA] extends to adverse actions which fall short of ultimate employment decisions." Wideman v. Wal-Mart Stores, Inc., 141 F.3d 1453, 1456 (11th Cir.1998) (emphasis added).

Due to the overall similarity between the standards, this Court in Reis found "no appreciable difference in applying the standard articulated by the Supreme Court in [ Burlington ] and the standard articulated by the Eleventh Circuit in Doe." See Reis, 2006 WL 2054178, at *13. The standard set forth by the Supreme Court is essentially the same as the standard previously employed by the Eleventh Circuit and, therefore, this Court.