Thursday, November 9, 2017

Munive v. Fairfax County School Board: When is a retaliatory action materially adverse?

In Munive v. Fairfax County School Board, No. 17-1692 (Nov. 7, 2017), the Fourth Circuit reversed the dismissal of Kathleen Munive's retaliation claim, concluding that Munive was subjected to a materially adverse action when the defendant allegedly refused to remove a reprimand letter from her personnel file as promised and she was denied a promotion because of the reprimand letter. Although the court's conclusion is correct, the court failed to apply the proper standard for determining whether Munive was subjected to a materially adverse action.

Quoting the Fourth Circuit's 2015 decision in Adams v. Anne Arundel County Public Schools, the court stated that although "an adverse action need not affect the terms and conditions of employment[,] . . . there must be 'some direct or indirect impact on an individual's employment as opposed to harms immaterially related to it.'" 

This standard is contrary to the controlling Supreme Court decision in Burlington Northern & Santa Fe Railway Co. v. White (2006). In Burlington Northern, the Court distinguished between Title VII's primary objective in prohibiting employment discrimination based on race, color, sex, religion, or national origin and its secondary objective in ensuring that someone can enforce his right not to be subjected to employment discrimination:
To secure the first objective, Congress did not need to prohibit anything other than employment-related discrimination. The substantive provision's basic objective of "equality of employment opportunities" and the elimination of practices that tend to bring about "stratified job environments" would be achieved were all employment-related discrimination miraculously eliminated.
But one cannot secure the second objective by focusing only upon employer actions and harm that concern employment and the workplace. Were all such actions and harms eliminated, the antiretaliation provision's objective would not be achieved. An employer can effectively retaliate against an employee by taking actions not directly related to his employment or by causing him harm outside the workplace.
In order for a retaliatory action to be materially adverse, it must be reasonably likely to deter someone from complaining about discrimination. Thus, if refusing to remove a reprimand letter from a personnel file is likely to prevent someone from complaining about discrimination, then that refusal is enough by itself to be actionable, regardless of whether it subsequently leads to the denial of a promotion. What's relevant is that having a reprimand in your personnel file very well could lead to your being denied a promotion or suffering some other negative job action. In other words, if you are facing the choice between complaining about discrimination and avoiding a reprimand, you might reasonably choose the latter merely because the reprimand might lead to some further adverse action down the road. Accordingly, if an employer refuses, contrary to its promise, to remove a reprimand from your file, that alone constitutes an adverse action.

In this case, while Munive should have been able to establish an adverse action based merely on the failure to remove the reprimand letter, the court clearly thought that was not enough, and it was only because of the loss of a promotion that Munive was able to proceed with her retaliation claim. Although the erroneous standard adopted by the Fourth Circuit in Adams did not really affect Munive, other plaintiffs pursuing retaliation claims within this circuit may be less fortunate.

This blog reflects the views solely of its author. It is not intended, and should not be regarded, as legal advice on how to analyze any particular set of facts.