Reprimand, Transfer Not ‘Adverse Action’ Triggering Discrimination Law

To be successful, an employee bringing a discrimination complaint under Title VII of the Civil Rights Act must show that he or she suffered an “adverse employment action” as a result of the discrimination. Not every disciplinary action amounts to an “adverse employment action,” as Officer Christopher Wade of the District of Columbia Metropolitan Police Department recently learned.

Wade asserted that he was the victim of retaliation because of his complaints about gender discrimination. In assessing his claims, a federal judge began with the proposition that a “materially adverse action” is an action that “could well dissuade a reasonable worker from making or supporting a charge of discrimination.” The Court assumed that Wade engaged in protected activity by making his complaints. The real issue, as the Court saw it, was whether Wade was subject to an adverse action.

Wade first argued that his supervisors retaliated against him by giving him an artificially low rating on his performance evaluation. The Court found the argument wanting, holding: “In order for a performance evaluation to be materially adverse, it must affect the employee’s position, grade level, salary, or promotion opportunities. Although Wade has provided evidence that his performance rating was lower than what was appropriate, he has not provided any evidence demonstrating that a lower rating would have affected any of the terms of his employment. Furthermore, the rating was reversed on appeal approximately five months later, resulting in a more favorable evaluation.”

Next, Wade argued that a supervisor retaliated against him by altering his weekly activity reports. Again, the Court was unimpressed, holding: “Wade does not argue that the alterations caused him any actual harm, and the record shows, at best, that Wade and the supervisor had a disagreement about how Wade should be reporting his time. Disagreements with a supervisor are part of the ordinary tribulations of the workplace.”

Wade’s next claimed adverse action was the reprimand issued to him for disobedience, which was later rescinded on appeal. Again, the Court found the employer’s action not sufficiently adverse to trigger Wade’s rights: “As with a negative performance evaluation, however, a reprimand is generally not actionable as retaliation unless there is some evidence that it caused material harm to the employee. Mere speculation that a letter of reprimand may lead to future punishment is insufficient to establish an adverse employment action. The fact that the reprimand was rescinded generally precludes a claim that the reprimand was materially adverse.”

Last, Wade argued that a transfer in patrol districts amounted to adverse action. Once again, the Court disagreed: “Lateral transfers – those entailing no diminution in pay and benefits – qualify as adverse employment actions if they result in materially adverse consequences affecting the terms, conditions, or privileges of the plaintiff’s employment. In this case, however, Wade has provided no evidence from which a jury could conclude that his transfer to the Sixth District affected the terms, conditions, or privileges of his employment. Wade does discuss the difference between his job as a technical writer and his assignment to the Sixth District as a patrol officer in his opposition brief, but he does not support this argument with citation to any evidence in the record. Therefore, Wade has failed to support his claim that the transfer to the Sixth District constituted a materially adverse action.”

When the Court was through with it, all that was left of Wade’s retaliation claim was that a supervisor publicly “humiliated and demeaned” him in front of fellow officers.

Wade v. District of Columbia, 2011 WL 1491075 (D. D.C. 2011).