On November 29, 2018, the 7th Circuit affirmed an order of summary judgment in favor of the defendant in a Title VII retaliation lawsuit in which the plaintiff, a federal employee, alleged that his employer retaliated against him for filing an EEO complaint. Lewis v. Wilkie, No. 18-1702 (7th Cir. 11/29/2018). The plaintiff’s employment had previously been terminated, but after a successful Equal Employment Opportunity (“EEO”) complaint, he was reinstated to his former position as a cook. He alleged that upon reinstatement, he was subjected to retaliation for his EEO activity through a variety of employment actions. The 7th Circuit agreed with the district court’s conclusion that none of the retaliatory actions alleged by the plaintiff constituted a materially adverse employment action.

Title VII of the Civil Rights Act of 1964 (“Title VII”) prohibits an employer from retaliating against an employee for opposing or participating in an investigation of an unlawful employment practice. To prevail on a Title VII retaliation claim, a plaintiff must prove that: (1) he engaged in statutorily protected activity; (2) he suffered an adverse employment action; and (3) there is a causal connection between the protected activity and the adverse action. There was no dispute that the plaintiff engaged in statutorily protected activity by filing his EEO complaint. Formal EEOC charges are the most obvious form of protected activity. The plaintiff thus established the first element of his retaliation claim. However, the district court held that the plaintiff did not establish that he suffered a materially adverse employment action. For purposes of Title VII retaliation, a materially adverse job action does not necessarily have to affect an employee’s terms and conditions of employment, but it must be an action that a reasonable employee would find to be materially adverse, such that the employee would be dissuaded from engaging in the protected activity. The U.S. Supreme Court has stated that Title VII “does not set forth a general civility code for the American workplace.” Title VII’s anti-retaliation provision does not protect an employee against petty slights or minor annoyances that often take place at work and that all employees experience. The provision protects an employee not from all retaliation, but from retaliation that produces an injury or harm.

The plaintiff alleged that various incidents involving agency administrative failures, such as failure to provide a locker, a delayed paycheck and a short paycheck, constituted materially adverse actionable retaliation. However, the district court concluded, and the 7th Circuit agreed, that these were simply isolated administrative errors that were resolved and did not cause the plaintiff lasting harm or injury sufficient to dissuade a reasonable employee from engaging in protected activity. They instead represented the type of minor workplace grievances against which Title VII does not protect. The plaintiff also claimed that various actions taken by a supervisor, such as altering his work schedule, reprimanding him for leaving early and questioning him about his whereabouts after he had gone to the restroom, amounted to materially adverse job actions. However, these actions did not cause the kind of harm that would dissuade a reasonable employee from engaging in protected activity. He also alleged that a supervisor’s alleged instruction to his coworkers to monitor him were materially adverse. Again, the district court concluded, and the 7th Circuit agreed, that even if this monitoring did occur, there was no evidence that it caused the plaintiff harm or injury. The knowledge that supervisors are monitoring an employee’s location at work would not dissuade a reasonable employee from engaging in protected activity. Same result for his allegation that a supervisor instructed a coworker to solicit negative information about him from his coworkers. An implicit threat of discipline, which never materializes, is not an actionable adverse employment action. An unfulfilled threat of future discipline may be relevant evidence of a retaliatory intent behind a more concrete adverse job action, but it does not constitute a materially adverse job action in and of itself. Lastly, the plaintiff alleged that his 60-day performance review was an adverse employment action because he was not a probationary employee. But the review was a standard requirement for all employees in new positions, did not result in any injury or harm and, therefore, was not a materially adverse employment action.

It should be noted, however, that the plaintiff did not allege a hostile work environment claim, which is a separate claim that may be predicated upon retaliatory harassment and evaluated under a different legal standard. If the plaintiff had done so, the outcome may have been different.