Absence of “Adverse Employment Action” Results in Dismissal of Title VII Disparate-Treatment Employment Discrimination Claims

In Guerra v. Murphy, No. 15-cv-1168, 2016 WL 7480405 (N.D.N.Y. Dec. 29, 2016), the court granted defendant’s motion to dismiss plaintiff’s disparate-treatment employment discrimination claim under Title VII of the Civil Rights Act of 1964, as he failed to plausibly allege the existence of an “adverse employment action.”

The court also dismissed plaintiff’s hostile work environment and retaliation claims, but here I’ll focus on its consideration of the disparate-treatment claim (and, in particular, the “adverse employment action” element of that claim).

The law, as summarized by the court:

In order to set forth a prima facie case of disparate treatment in violation of Title VII, a plaintiff must allege that: (1) she is a member of a protected class; (2) her job performance was satisfactory; (3) she suffered adverse employment action; and (4) the action occurred under conditions giving rise to an inference of discrimination. …

In [the Second] [C]ircuit, an adverse employment action is a materially adverse change in the terms and conditions of employment. A change in the terms and conditions of employment is not materially adverse unless it is more disruptive than a mere inconvenience or an alteration of job responsibilities. Examples of such a change include termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices … unique to a particular situation. [E]xcessive scrutiny, criticism, and negative evaluations of an employee’s work are not materially adverse employment actions unless such conduct is accompanied by negative consequences, such as demotion, diminution of wages, or other tangible loss. (Emphasis added.)

Applying the law, the court explained:

Guerra’s disparate-treatment claim must be dismissed because he fails to allege that he experienced any adverse employment actions. A significant portion of Guerra’s Amended Complaint is devoted to outlining incidents in which supervisors or coworkers yelled at or reprimanded him. These incidents, while undoubtedly unpleasant for Guerra, fail to rise to the level of materially adverse changes in the terms or conditions of his employment. That is because there is no indication that they led to any tangible consequences related to Guerra’s position at the Arsenal.

The court also considered other incidents alleged to be adverse employment actions – including a supervisor’s replacing plaintiff’s chair with a broken one, another supervisor’s refusal to give keys to plaintiff, plaintiff’s authority being disregarded, an allegedly false accusation that plaintiff was responsible for a missing chainsaw, and alleged negative performance evaluation – but held that they did not qualify.

As to the negative evaluations, the court noted that – even assuming they were negative – plaintiff “fails to allege that the supposedly negative evaluations he received in 2012 or 2013 had any adverse results relating to his position at the Arsenal” and “fails to make even the conclusory assertion that it affected his employment that courts have regularly found insufficient to establish an adverse employment action stemming from a negative evaluation.”