The Wrong Stuff: Middle District of Florida Seemingly Revives Narrow, Pre-Burlington Reading of Title VII’s Antiretaliation Provision in Action Against NASA

You are an employee at NASA at the Kennedy Space Center (KSC). In 2004, you file an informal complaint with the EEOC for discrimination and harassment, alleging that your superior sent e-mails to you and others in your department containing pictures of your face superimposed on a nude topless picture of a woman jet skiing. You agree to have the matter referred to ADR, after which you receive a monetary payment, restoration of leave lost due to the incident, and other benefits.

The following year, you file a formal complaint with the EEOC, alleging gender discrimination and retaliation arising out of NASA‘s failure to promote you. The EEOC finds that you were the “superior applicant for the position” and denied the promotion in part due to discrimination on the basis of your sex and retaliation for your participation in prior protected EEOC activity. The EEOC order also states that NASA should consider whether to discipline any of the persons involved in the failure to promote you. NASA, however, does not discipline any of these individuals. You bring two more EEOC actions, after which the EEOC adds suggested discipline against the persons involved in the failure to promote. NASA, however, still does not discipline any of these individuals.

Thereafter, you bring an action against the administrator of NASA, claiming that you have been intentionally discriminated against, intentionally harassed, and intentionally retaliated against because of your opposition to NASA‘s unlawful employment practices. Part of your claim is that NASA‘s decision not to discipline the persons involved in the failure to promote you was itself further retaliation against you and resulted in the same individuals further discriminating and retaliating against you. In determining whether evidence of this challenged action — failure to discipline — will be admissible at trial, the court has to determine whether a reasonable employee would have found the challenged action materially adverse, i.e., whether the challenged action might well have dissuaded a reasonable worker from making or supporting a charge or discrimination. The court rules against you. This post explains why I disagree.

The facts listed above were the facts in Jarvis v. Griffin, 2009 WL 3781587 (M.D. Fla. 2009), with the plaintiff being Cynthia R. Jarvis, a NASA employee for 29 years. The controlling law can be found in the Supreme Court’s recent opinion in Burlington N. & Santa Fe Ry. Co. v White, 548 U.S. 53 (2006). Before that opinion, there was a circuit split regarding the level of seriousness to which a harm had to rise before it became actionable retaliation.

“Some Circuits…insisted upon a close relationship between the retaliatory action and employment,” such as the Sixth Circuit, which held  “that a plaintiff must show an ‘adverse employment action,’ which it defined as a ‘materially adverse change in the terms and conditions’ of employment.” “Other Circuits [did] not so limit[] the scope of [Title VII’s antiretaliation] provision, with the Seventh and D.C. Circuits finding that a plaintiff must merely “show that the ’employer’s challenged action would have been material to a reasonable employee,’ which…means that  it would likely have ‘dissuaded a reasonable worker from making or supporting a charge of discrimination.'”

The Supreme Court sided with the Seventh and D.C. Circuits, and, in Crawford v. Carroll, 529 F.3d 961, 973 n.13 (11th Cir. 2008), the Eleventh Circuit found that Burlington “strongly suggests that it is for a jury to decide whether anything more than the most petty and trivial actions against an employee should be considered ‘materially adverse’ to him and thus constitute adverse employment actions.” In other words, unless the failure to discipline the individuals who  did not promote Jarvis in part due to discrimination and retaliation was a petty and trivial (non)action, the court should have allowed Jarvis to present her evidence, with the jury resolving the issue. But the jury will never hear about NASA‘s failure to discipline.

Instead, the United States District Court for the Middle District of Florida found that it could not

say that a reasonable person would have found NASA‘s decision not to punish or discipline KSC officials involved in the decision not to promote Plaintiff to be materially adverse. While the Burlington court took a liberal view of what constitutes an adverse employment action, according employees protection from a wide range of retaliatory conduct, NASA‘s decision not to act on a suggestion provided in an EEOC decision does not fall within the purview of adverse employment action under Title VII. The Plaintiff does not suggest how such a decision might “deter a reasonable employee from pursuing a pending charge of discrimination or making a new one.”…In fact, Plaintiff was not so deterred and subsequently filed two more formal EEOC discrimination complaints….Furthermore, Plaintiff does not demonstrate that she suffered any actual harm from NASA‘s decision, nor does she provide any evidence demonstrating how the decision materially affected her own employment. Accordingly, Plaintiff will not be permitted to present evidence in support of her claims that NASA did not punish or discipline KSC officials involved in the decision not to promote Plaintiff.

Really? So, Jarvis brings an EEOC action against NASA and recovers after ADR. She is then not promoted, which the EEOC determines to be an action of discrimination and retaliation. And yet, NASA does nothing to discipline those involved in that decision. How could that not even create a genuine question as to whether this was another act of retaliation? To me, it doesn’t even matter that the EEOC suggested discipline to NASA (although this fact supports a finding of retaliation). How do you not discipline employees engaging in discrimination and retaliation? To me, this seems to be a clear case of retaliation, and I could easily see how a reasonable employee might be deterred from pursuing further actions based upon NASA‘s inaction.

I also don’t buy the court’s argument that Jarvis was not deterred from bringing other actions against NASA, meaning that a reasonable employee would not be deterred from pursuing a pending charge of discrimination or making a new one. Under that argument, how could an employee ever recover for retaliation under this theory because, according to the court, the fact that she brought the action means that she was not deterred? Heck, all the court needed to do was look at Jarvis’ second EEOC action to see that she could recover. Obviously, the EEOC found that NASA retaliated against Jarvis by not promoting her despite the fact that she was not deterred from bringing the action.

Of course, in that second EEOC action, Jarvis was able to prove a material effect on her employment, which, according to the court, she was not able to prove in the case before it. Frankly, I’m not sure how the court reached this conclusion. Jarvis certainly raised several such allegations in her amended complaint, and the court’s opinion never rejected these allegations. In her amended complaint, Jarvis alleged, inter alia,

31. Instead, Plaintiff was subjected to further retaliation.

32. During her employment, Plaintiff also complained about having to work overtime and excessive hours at home, without appropriate pay.

33. As a result of the foregoing, and the multiple illnesses Plaintiff was suffering due to the discrimination, retaliation and illegal activities by Defendant, on September 21, 2007, Plaintiff’s doctor required Plaintiff to take an extended medical leave. Plaintiff provided documentation from her Doctor, Dr. Charles A. Slattery, regarding her medical leave.

34. On or around October 1, 2007, Defendant outsourced a significant portion of Plaintiff’s job to another Federal Agency, essentially stripping her of the majority of her job duties and responsibilities and have not provided Plaintiff with all of the proper training, resources, staff, and support and, in effect, demoting her. In other words, Plaintiff has been deprived of the ability to be fully successful and of her NASA career.

35. Defendant also refused to accept Plaintiff’s doctor’s medical documentation. Instead, Defendant required”additional medical documentation.”Defendant also threatened to place Plaintiff on Absent Without Leave (“AWOL”), status if she failed to timely comply with his request. 2009 WL 3501234.

To me, the opinion of the court was horribly misguided  and was, in effect, an implicit revival of the pre-Burlington standard applied by courts reading Title VII’s antiretaliation provision narrowly. I thus hope that the Eleventh Circuit gets a chance to hear Jarvis’ appeal and reverses the district court’s ruling.

-Colin Miller

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