No Need to Walk on Eggshells When Reprimanding an Employee Who Has Claimed Discrimination

July 27, 2007

Although an employee made several complaints of harassment and sexually discriminatory treatment, alleged supervisory reprimands, including critical comments on lack of customer solicitations, denial of sales assistance of doubtful value, and the employer's asserted reluctance to discuss the employee's past harassment claims, even if true, would result only in trivial harm and not provide a basis for Title VII retaliation claims under Burlington N. & Santa Fe Ry. Co. v. White, 126 S.Ct. 2405 (2006), a federal appeals court in St. Louis has held. Devin v. Schwan's Home Service, Inc., No. 06-3551 (8th Cir. July 6, 2007).

The Devin decision should help ease employer concerns over fending off retaliation claims.

Trivial Versus Material Harm to the Employee

In White, the Supreme Court found that an employee's 37-day unpaid suspension—even when followed by full back pay—and her re-assignment from being a forklift operator to the dirtier, tougher duties of working on a railroad track gang were materially adverse or harmful changes in employment. If these changes were caused by reporting unlawful discrimination in the workplace, they would support a viable claim for retaliation under Title VII, according to White. On the other hand, trivial harms or petty slights in the workplace would not give rise to Title VII retaliation claims.

Trivial Harms Ruling in Devin v. Schwan's

Devin is the first elaboration at the court of appeals level of the "trivial harms" exception provided in White. In Devin, the plaintiff was a Route Manager selling frozen food products door-to-door for her employer. While Ms. Devin made a variety of claims (harassment, constructive discharge, sex discrimination, and equal pay violations), her primary contention was that her supervisor had punished her for reporting alleged discrimination. He allegedly did this by criticizing her with a written warning notice for not soliciting enough potential new customers, by denying her a Route Builder (a person who would "cold call" non-customers along a Route Manager's route, looking for new customers for the Route Manager), and by failing to consider her claims of harassment and discrimination in their last meeting discussing her performance.

The Eighth Circuit Court in Devin found that each of the alleged "punishments", even if they were true, was not the type of materially adverse action that would give rise to a viable retaliation claim. Each was insignificant.

First, a written warning notice given to Ms. Devin regarding the lack of soliciting new customers was not a materially adverse action because no negative "consequences" flowed from it. There was no loss of pay or benefits. For employers, this ruling likely means that both oral and verbal reprimands by an employer, without more, will not constitute a basis for a viable retaliation claim.

Second, in addition to other proof problems, the Court reasoned that denial of a Route Builder had not been shown to produce a significant harm because Route Builders lacked significant value. For employers, this will likely be significant in cases involving transfers, promotions, and denials of benefits. If an employee fails to show a quantifiable and substantial value in an allegedly withheld job aid or benefit, then the Eighth Circuit has held that the employee may be unable to show a materially adverse action or significant harm under White so as to give rise to a retaliation claim.

Finally, the employer's decision to focus on the employee's future work performance, while still allowing the employee to voice whatever complaints she had on other matters such as alleged harassment or discrimination, is not a materially adverse action under White. It does not give rise to a significant harm.

What Does the Future Hold?

White takes the common sense view that if an employer retaliates against an employee with actions that do not ultimately involve a deprivation of pay or benefits, but which nevertheless have a "real-life" detrimental effect on the employee and on her willingness to report alleged acts of discrimination in the workplace, a viable retaliation claim may be made. For example, depriving a person of 37 days of pay, even if eventually paid, works a significant hardship on the employee. Devin applies the same common sense view with respect to the trivial harms exception; just as the White Court disregarded job labels and focused on whether there were actual job deprivations, the Devin Court disregarded "warning notice" and similar labels and focused on whether actual harm was done to Ms. Devin.

Ms. Devin was never deprived of pay or of a provable method for increasing her pay. Nor was she ever prevented from raising her concerns about harassment or discrimination in the workplace. The Eighth Circuit looked at the evidence and found Ms. Devin never actually was deprived of anything significant that would dissuade her from reporting discriminatory conduct. There was no actionable discrimination.

Kurt J. Erickson, a partner in the Minneapolis, Minnesota office, represented Schwan's Home Service, Inc., in this case before the Federal District Court in Minnesota and in the appeal to the Eighth Circuit Court of Appeals. Please contact Mr. Erickson and the other principals of our Minneapolis office for further information on Devin or retaliation claims in general.

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