Court Explains Differing Standards for “Adverse Action” Depending on Whether Claim is For Retaliation or Status-Based Employment Discrimination

In Corrado v. New York State Uniform Court System, the Eastern District of New York explained the difference between an “adverse action” for purposes of retaliation and an “adverse action” for purposes of discrimination based on a protected class (so-called disparate treatment).


To show a prima facie case of retaliation, plaintiff must demonstrate that (1) he was engaged in 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 that adverse action. In Burlington Northern and Santa Fe Ry. Co. v. White, 548 U.S. 53, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006), the Supreme Court broadened the definition of “material adverse action” for retaliation claims. Unlike disparate treatment claims where adverse action must relate to the terms and conditions of employment, a retaliation 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 alleged the following acts of retaliation:

1) she was closely monitored and micro-managed; 2) she was routinely and viciously ridiculed, reprimanded and criticized for her investigative and litigation work and memos reflecting negative accounts of her productivity and practices were placed in her personnel file; 3) she was subjected to numerous hours of one-on-one supervision; 4) she was subjected to unreasonable workloads, demands and deadlines; 5) she was strictly monitored on her time and leave and memos reflecting her arrival and departure times were placed in her personnel file; 6) she was repeatedly ordered to attend counseling sessions of performance and time and leave issues, under threat of termination if she failed to attend these sessions; 7) she was given a negative performance evaluation; 8) she was denied a request for transfer; and 9) she was constructively discharged.

In ruling in plaintiff’s favor, the court reasoned:
At the outset, plaintiff’s alleged constructive discharge, standing alone, clearly qualifies as an adverse employment action sufficient to sustain her retaliation claim. …  As to the other allegations in the complaint, although some of the conduct cited may be considered “trivial” when considered in isolation, in the aggregate, when viewed in the light most favorable to plaintiff, the course of conduct described by plaintiff is sufficient to constitute adverse action. … Plaintiff complains of a sustained campaign of retaliation over the course of several years involving increased scrutiny, criticism of her work, negative evaluations and denials of her transfer requests to remove herself from the allegedly toxic environment in which she worked. [I]n context, even the minor acts of retaliation recited by plaintiff are sufficiently “substantial in gross” so that they might dissuade a reasonable worker from engaging in protected activity.
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