Title VII Retaliation Claim Properly Dismissed; Discipline Per Employer Policy and “Trivial Harms” Were Not “Adverse Employment Actions”

A recent decision, Forest v. NYS Office of Mental Health, No. 15-3950, 2016 WL 6917228 (2d Cir. Nov. 23, 2016) (Summary Order), illustrates that not every employer’s action qualifies as an “adverse employment action” sufficient to establish a retaliation claim under Title VII of the Civil Rights Act of 1964.

In this case, the court affirmed the district court’s grant of summary judgment dismissing plaintiff’s Title VII retaliation claim, finding that plaintiff failed to establish the “adverse employment action” element.

The facts, as summarized by the court:

Ruth Forest has been a registered nurse at Sullivan Correctional Facility (“SCF”) since 2006. On March 21, 2011, Forest filed an internal complaint of gender discrimination with SCF’s Affirmative Action Department. In May 2011, Forest went out on medical leave and returned in January 2012. She complains that, upon her return, her supervisors, Shelley Depew and Sueann Smith, retaliated against her for filing the internal complaint by having her work weekdays instead of weekends for a period of two weeks, asking her to review the new policies implemented during her eight-month absence, preventing her from leaving the facility for lunch, and reprimanding her for using red ink on patients’ charts.
In April 2012, Forest filed a complaint with the New York State Division of Human Rights (“NYSDHR”), alleging gender discrimination and retaliation. After that complaint, she alleges that she was again retaliated against by supervisors when she was: (1) written up for completing paperwork on a patient who had already been discharged; (2) assigned an extra week of medication classes; and (3) disciplined for a missing syringe. She also claims that from “about 2011” to June 2013, her supervisors prevented her from answering the phones during the nurses’ morning meetings.

The black-letter law is relatively clear: “To establish a prima facie case of retaliation, a plaintiff must submit sufficient admissible evidence to allow a trier of fact to find: (i) conduct by the plaintiff that is protected activity under Title VII; (ii) of which the employer was aware; (iii) followed by an adverse employment action of a nature that would deter a reasonable employee from making or supporting a discrimination claim; (iv) that was causally connected to the protected activity.” (Emphasis added.)

From the Order:

We conclude that Forest failed to establish a materially adverse employment action and so affirm on this basis. Material adversity is to be determined objectively, based on the reactions of a reasonable employee. Id. “[T]rivial harms”—i.e., “those petty slights or minor annoyances that often take place at work and that all employees experience”—are not materially adverse. Id. (quoting Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006)). An employer’s “enforcement of its preexisting disciplinary policies in a reasonable manner” does not amount to a materially adverse action. Rivera v. Rochester Genesee Reg’l Transp. Auth., 743 F.3d 11, 26 (2d Cir. 2014) (quoting Brown v. City of Syracuse, 673 F.3d 141, 150 (2d Cir. 2012)). In addition, “criticism of an employee (which is part of training and necessary to allow employees to develop, improve and avoid discipline) is not an adverse employment action.” Tepperwien, 663 F.3d at 570 (quoting Weeks v. N.Y. State (Div. of Parole), 273 F.3d 76, 86 (2d Cir. 2001)).
As an initial matter, Forest was only—at most—criticized for the missing syringe and for using red ink on patients’ charts. See id. (stating that a lack of disciplinary action cuts against finding of material adversity). Moreover, many of the allegedly retaliatory acts reflect the reasonable enforcement of OMH’s preexisting disciplinary policies. Specifically, OMH’s Human Resources Administrative Manual requires all mental health staff to remain on the compound for lunch.1 OMH policy required nurses properly to identify patients before giving them treatment and to document only the treatment they provided. In addition, OMH has put into the record its written policy about syringe/sharp disposal. Any formal discipline Forest received was in accordance with this policy.2 See Rivera, 743 F.3d at 26.
Furthermore, the other actions on which Forest relies—that her schedule was shifted from weekends to weekdays for two weeks, that she had to review the policies implemented while she was on medical leave, that she was prevented from answering phones, and that she was assigned an extra week of medication classes—reflect “trivial harms.”3 See Tepperwien, 663 F.3d at 568, 571-72. Thus, Forest failed to establish the third element of her prima facie case of retaliation under Title VII. The district court properly granted the defendant’s motion for summary judgment.
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