Court Rejects Motion to Amend Complaint to Add Retaliation Claim; Informal Reprimands Were Not “Adverse Employment Actions”

A recent decision, Frazier v. City of New York Dep’t of Correction, No. 14-CV-1224 (KAM)(PK), 2016 WL 4444775 (E.D.N.Y. Aug. 23, 2016), addressed whether certain alleged actions were “adverse employment actions” sufficient to support a proposed complaint amendment to add a claim of retaliation.

Initially, the court addressed the procedural issue of whether plaintiff should be permitted to amend his complaint, since he sought to do so after the deadline set in the FRCP 16(b) scheduling order. It determined that there was “good cause” to amend within the meaning of FRCP 16(b)(4): “Plaintiff could not have brought its proposed retaliation allegations prior to the April 30, 2015 deadline for amendment of pleadings because the earliest of the alleged retaliatory incidents occurred on November 5, 2015, approximately seven months after the deadline to amend had expired.”

The court then turned to address whether the amendment was permissible under FRCP 15(a)(2). It held that it was not, because the proposed amendment would be futile.

Judge Matsumoto provided a brief overview of the elements of a Title VII claim:

Plaintiff seeks to amend his complaint to add allegations that defendants retaliated against him for his complaints of discrimination. To state a prima facie case for unlawful retaliation under Title VII, a plaintiff must allege facts sufficient to show that: (1) he participated in a protected activity; (2) the employer was aware of that activity; (3) the employee suffered a materially adverse action; and (4) there was a causal connection between the protected activity and the adverse action. The requirement of a materially adverse employment action reflects the principle that Title VII does not protect an employee from all retaliation, but only retaliation that produces an injury or harm. To establish a materially adverse action, 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.

Plaintiff asserted three alleged “adverse employment actions”: (1) his being summoned to a disciplinary meeting where allegations were made against him, (2) suggestion that plaintiff be written up, and (3) the requirement that plaintiff take a drug test.

As to the first two actions, the court held that “plaintiff does not allege that he suffered any materially adverse employment consequences,” and citing several cases for the proposition that “reprimands that do not lead to materially adverse employment consequences are not actionable forms of retaliation.” The meeting and write-up suggestion “were informal reprimands without any accompanying allegations that they caused injury or harm to plaintiff, and therefore were not materially adverse employment actions under Title VII.”

As to the third alleged retaliatory incident, the drug test, the court explained: “The results of the test were negative, and plaintiff alleges no adverse consequences resulting from taking the test. Nor does plaintiff allege that requiring him to take the test violated a DOC policy or procedure, or that other employees were not subjected to drug tests.”