Retaliation Dismissal Affirmed; Being Told to “Cool Off” Not an “Adverse Employment Action”

In the employment discrimination context, one issue that typically arises is whether an employee has sustained an actionable “adverse employment action.” Not every action that might be perceived as negative or otherwise disadvantageous qualifies.

A recent example of a court addressing this issue is Dedjoe v. Dr. Mark T. Esper, in his official capacity as the Secretary of the Army, 2020 WL 835793 (2d Cir. Feb. 20, 2020) (Summary Order).

There, the court affirmed the lower court decision not to overturn a jury verdict in defendant’s favor on plaintiff’s retaliation claim, finding that there was no “adverse employment action.”

From the decision:

The evidence at trial established that Dedjoe complained of race discrimination by security personnel at least three times while working as an electrical engineer for the Army at the Watervliet Arsenal (the “Arsenal”) in upstate New York. The alleged retaliatory act that followed these complaints occurred on November 7, 2012 when Dedjoe got into a disagreement with a security officer at the Arsenal’s Visitor Center and was escorted out of the building with instructions not to return for the day. Dedjoe, however, received full pay for the day with no deduction to his accrued leave time. Dedjoe returned to work the following day without incident.

A reasonable juror could have concluded that being told to cool off for half a day without any deduction in pay was not an adverse employment action. “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.” Vega, 801 F.3d at 85 (quoting Terry v. Ashcroft, 336 F.3d 128, 138 (2d Cir. 2003) (alterations and internal quotation marks omitted)). Importantly, however, “[a]n adverse employment action is … more disruptive than a mere inconvenience or an alteration of job responsibilities.”

While plaintiff principally argued that his suspension constituted an adverse employment action, the court noted other evidence at trial being told to leave the workplace was a “reasonable response” to plaintiff’s workplace conduct.

Based on this, the court concluded that “a reasonable juror could have concluded that Dedjoe’s removal for half a day with pay was not an adverse employment action, and thus that Dedjoe failed to prove the third element of a prima facie retaliation claim.” Since there was a “legally sufficient evidentiary basis” to support the jury’s verdict, the Second Circuit affirmed the denial of plaintiff’s motion based on Federal Rule of Civil Procedure 50.

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