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Employment Practices

Second Circuit Applies New Supreme Court Standard for Retaliation Claims

Paul Siegel | May 1, 2010

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In Hicks, et al. v. Baines, et al., Docket No. 06–3782–CV (2d Cir. Feb. 2, 2010), the U.S. Court of Appeals for the Second Circuit held that retaliation claims brought by three New York State employees were sufficient to survive summary judgment. Significantly, the Second Circuit applied the standard set forth by the U.S. Supreme Court in its 2006 decision, Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006). The Second Circuit's detailed decision will provide guidance to employers seeking to comply with the antiretaliation provisions of federal and state laws.

In Hicks, plaintiffs each were employed by a state-run facility for troubled youths. Prior to the lawsuit, plaintiffs' coworker made a complaint of racial discrimination against their shared supervisor, Defendant Baines. Each plaintiff cooperated in the employer's investigation, which resulted in disciplinary action against Baines.

Plaintiffs thereafter filed a lawsuit alleging that Baines retaliated against them because of their cooperation with the employer's investigation. In a decision issued just weeks after the Supreme Court decided White, the U.S. District Court for the Western District of New York awarded summary judgment in favor of the defendants holding that the plaintiffs did not suffer an adverse employment action because the alleged misconduct "did not amount to a meaningful change in the terms and conditions of employment." At issue on appeal was whether the plaintiffs were subject to an "adverse employment action" sufficient to state a prima facie case of retaliation.

In White, the Supreme Court held that Title VII's antiretaliation provision applies broadly to "employer actions that would have been materially adverse to a reasonable employee or job applicant." Actions are "materially adverse" if they are "harmful to the point that they could well dissuade a reasonable worker from making or supporting a charge of discrimination." How to apply this standard was left to the circuit and district courts.

What is clear is that Title VII's antiretaliation protection is broader than antidiscrimination protection in that it extends beyond workplace-related or employment-related adverse economic harm. Second, by requiring a showing of "material" adversity, the principle that Title VII does not set forth a "general civility code for the American workplace" remains true. Third, by considering the perspective of a "reasonable employee," White sets forth an objective standard. The consideration of whether the employer's action is one that would deter a similarly situated individual from exercising his or her rights is "not just an important consideration—it is the only consideration." Fourth, the alleged acts must be considered both separately and in the aggregate because even minor acts of retaliation can be "substantial in gross."

Materially Adverse Employment Actions

In Hicks, plaintiffs' allegations included a number of acts which they argued were "materially adverse" and retaliatory. Most were rejected because they were supported only by insufficient conclusory affidavits. However, the Second Circuit held that two alleged acts, schedule changes and a reprimand, were "materially adverse employment actions" sufficient to withstand summary judgment. Those material changes in status were as follows.

First, plaintiffs alleged that Baines intentionally adjusted their shift times, break times, work locations, and work assignments in a retaliatory manner. As a result of these reassignments, plaintiffs were required to work alone on their shifts and arguably were exposed to more hazardous work conditions. The Second Circuit concluded that a reasonable person in plaintiffs' position may well be dissuaded from participating in a discrimination investigation if he knew that, in retaliation, his work schedule would be changed such that he would have to work alone at a facility more dangerous than where he worked previously. For this reason, the schedule change was considered to be a materially adverse employment action sufficient to state a prima facie case of retaliation.

Second, plaintiffs alleged that Baines purposely prevented them from setting an alarm at the facility where they worked. Plaintiffs were reprimanded for failing to activate the alarm. In context, failing to set the alarm was an offense serious enough to result in discipline because it created a risk that a vulnerable resident may wander outside or become a victim of an intruder.

Based on the foregoing, the Second Circuit held that a reasonable person in plaintiffs' position may well be dissuaded from participating in a discrimination investigation if they knew that, in retaliation, they would be disciplined (though innocent) for their failure to set a facility alarm. For this reason, the reprimand was considered to be a materially adverse employment action sufficient to state a prima facie case of retaliation.


Hicks should not be read to imply that all schedule changes or reprimands constitute materially adverse employment actions sufficient to state a prima facie case of retaliation. In contrast, as the Second Circuit explained, "context matters." The only inquiry is whether a reasonable employee in the plaintiffs' position may well be dissuaded from engaging in protected activity if they knew that, in retaliation, they would be subject to the adverse acts alleged. Nevertheless, since actions as seemingly innocuous as schedule changes and disciplinary warnings may be considered materially adverse, employers should develop a protocol requiring oversight before any adverse action is taken toward an employee who personally made a complaint or who assisted in the complaint investigation process.

Ana C. Shieldsis a senior associate in the Long Island office of Jackson Lewis. Since joining Jackson Lewis, Ms. Shields has practiced exclusively in the area of employment litigation and has been involved in proceedings before federal and state courts, the American Arbitration Association, and administrative agencies. She has advised employers on compliance with various state and federal laws affecting the workplace. Ms. Shields can be reached at (631) 247–4657.

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