New Trial on Retaliation Claims Granted Due to Erroneous Jury Charge; Alleged Incidents Should Have Been Considered in the Aggregate

In Young v. Town of Islip et al, 2017 WL 5468752 (E.D.N.Y. Nov. 13, 2017), the court explained the difference between an “adverse employment action” in the discrimination context, vs. an “adverse employment action” in the retaliation context. The court held that the jury instructions on plaintiff’s retaliation claims – but not her race discrimination claims – were improper, since the alleged retaliatory actions should have been considered in the aggregate. The court thus awarded plaintiff a new trial on her retaliation claims.

It explained:

Materially adverse employment actions in the discrimination context must change the terms and conditions of employment. See Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 85 (2d Cir. 2015) (“A plaintiff sustains an adverse employment action if he or she endures a materially adverse change in the terms and conditions of employment.” (quoting Galabya v. N.Y.C. Bd. of Educ., 202 F.3d 636, 640 (2d Cir. 2000)). “Examples of materially adverse changes 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. …

In Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 126 S. Ct. 2405, 165 L. Ed. 2d 345 (2006), the Supreme Court clarified a plaintiff’s burden in demonstrating whether an employment action was materially adverse in the retaliation context. The Court held that “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. …

Title VII’s substantive provision and its antiretaliation provision are not coterminous. The scope of the antiretaliation provision extends beyond workplace-related or employment-related retaliatory acts and harm. We therefore reject the standards applied in the Courts of Appeals that have treated the antiretaliation provision as forbidding the same conduct prohibited by the antidiscrimination provision and that have limited actionable retaliation to so-called “ultimate employment decisions.”

Therefore, “the anti-retaliation provision of Title VII, unlike Title VII’s substantive provision, is not limited to discriminatory actions that affect the terms and conditions of employment.” …

Relevant here, “in determining whether conduct amounts to an adverse employment action, the alleged acts of retaliation need to be considered both separately and in the aggregate, as even minor acts of retaliation can be sufficiently ‘substantial in gross’ as to be actionable.” (Emphasis added.)

Applying the law to the facts, the court held that it erred in the charges submitted to the jury on plaintiff’s retaliation claims.


[T]he Court did not permit the jury to consider whether the actions taken against the Plaintiff in the aggregate might have dissuaded her from supporting her charges of discrimination. The Plaintiff introduced evidence that she was given written reprimands; was sent home without pay on one occasion; had a reduction in responsibilities; did not receive information vital to her job performance; and lost her health insurance earlier than she should have.

It noted that some of these incidents have been held to be sufficient on their own as materially adverse employment actions, while others have been found to be insufficient.

The court thus concluded: “Therefore, in view of the cases cited above, instead of merely asking the jury whether retaliation was the but-for cause of the Plaintiff’s termination, the Court should have asked the jury to also consider whether retaliation was the but for cause of the other aggregated alleged adverse employment actions taken against the Plaintiff.”

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