Second Circuit: Pecuniary Injury Not Necessary for “Adverse Action” for Retaliation Claim

A Summary Order issued today by the Second Circuit (in Kirkweg v. New York City Department of Education) includes language helpful to plaintiffs asserting retaliation claims.

Citing the Supreme Court’s decision in Burlington N. & Sante Fe Ry. Co. v. White, 548 U.S. 53, 68−70 (2006) and Second Circuit precedent, the Second Circuit explains:

In granting dismissal, the district court concluded that … to the extent [plaintiff] asserted revocation of a pay increase she had awarded a staff member, that revocation decision was not adverse to Kirkweg. Kirkweg persuasively challenges the latter conclusion. Acts that humiliate or undermine an employee’s authority with subordinates can constitute adverse action supporting a claim for retaliation whether or not accompanied by any pecuniary injury. The crucial inquiry is whether the act could dissuade a reasonable employee from making a discrimination claim against the employer. While a pattern of humiliating or undermining activity may more readily yield a positive answer, it cannot be said that a single act—including the single act here—is insufficient as a matter of law to support that inference. Thus, to the extent this was the basis for dismissal, we are obliged to vacate and remand. (Emphasis added.)

Share This: