AND · 29usc623:retaliatory-adversity
Davis-Garett applies Burlington Northern: harm need not change employment terms, but trivial slights do not suffice. Evaluate context and employer knowledge of protected conduct.
Exact element source
It shall be unlawful for an employer to discriminate against any of his employees or applicants for employment, for an employment agency to discriminate against any individual, or for a labor organization to discriminate against any member thereof or applicant for membership, because such individual, member or applicant for membership has opposed any practice made unlawful by this section, or because such individual, member or applicant for membership has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or litigation under this chapter.Source:
docroot/ir/usc/title29.jsonl#title29_sec623; Unicode character offsets [1750:2342] (end exclusive); SHA-256 d7414b39849853d6a6068539da731f835b09d9f238c028f95f2d0dd04fb6f667.Routes and case patterns
| Route | Definition | Merits instance blocks | Distinct merits cases | Examples (up to 3 cases per count group) |
|---|---|---|---|---|
| _whole accepted; 4 observed cases | The element is decided as a whole: the reasoning turns on no narrower doctrinal sub-question that distinguishes it from any other application of this element. | 4 Satisfied 3; not satisfied 1; excluded context 0 | 4 | Shoap v. City of Crossville — 321 F. Supp. 3d 839 (2018) · United States District Court for the Middle District of Tennessee · 2018 — not · no-evidence (29usc623: author: Flash2 · QA: FIX (Fable, neov2/cases/TRIAGE-Flash.md)) · applied/merits · counted Spratt v. Bellwood Public Library — 380 F. Supp. 3d 783 (2019) · United States District Court for the Northern District of Illinois · 2019 — satisfied · pleaded (29usc623: author: Astra4 · not independently reviewed) · applied/merits · counted Rivera-Rivera v. Medina & Medina, Inc. — 898 F.3d 77 (2018) · United States Court of Appeals for the First Circuit · 2018 — satisfied · triable (29usc623: author: Flash2 · QA: FIX (Fable, neov2/cases/TRIAGE-Flash.md)) · applied/merits · counted |
How courts decided this element
| Case | Element | Holding and scope | Pattern | Exact source quotations |
|---|---|---|---|---|
| Shoap v. City of Crossville — 321 F. Supp. 3d 839 (2018) · United States District Court for the Middle District of Tennessee · 2018 — not · no-evidence (29usc623: author: Flash2 · QA: FIX (Fable, neov2/cases/TRIAGE-Flash.md)) | Judicial material-adversity standard for retaliation | not Counted merits instance applied / merits basis: no-evidence | voluntary resignation, no discipline, no constructive discharge; retaliation claim fails for want of any adverse action | Later that day, Shoap resigned.Source: docroot/ir/caselaw/f_supp_3d_321.jsonl#/f-supp-3d/321/0839-01; Unicode character offsets [6108:6139] (end exclusive); SHA-256 ee219aaf1280b9da9f84bccea93809598a76eb5608909d7a2172afb680dd40de.Prior to the resignation, Hill did not fire Shoap or say he was going to fire Shoap.Source: docroot/ir/caselaw/f_supp_3d_321.jsonl#/f-supp-3d/321/0839-01; Unicode character offsets [6454:6538] (end exclusive); SHA-256 ee219aaf1280b9da9f84bccea93809598a76eb5608909d7a2172afb680dd40de.Shoap was not subjected to discipline by Crossville at any time.Source: docroot/ir/caselaw/f_supp_3d_321.jsonl#/f-supp-3d/321/0839-01; Unicode character offsets [6941:7005] (end exclusive); SHA-256 ee219aaf1280b9da9f84bccea93809598a76eb5608909d7a2172afb680dd40de.Crossville is therefore entitled to summary judgment on Shoap's ADEA retaliation claim.Source: docroot/ir/caselaw/f_supp_3d_321.jsonl#/f-supp-3d/321/0839-01; Unicode character offsets [23197:23284] (end exclusive); SHA-256 ee219aaf1280b9da9f84bccea93809598a76eb5608909d7a2172afb680dd40de. |
| Spratt v. Bellwood Public Library — 380 F. Supp. 3d 783 (2019) · United States District Court for the Northern District of Illinois · 2019 — satisfied · pleaded (29usc623: author: Astra4 · not independently reviewed) | Judicial material-adversity standard for retaliation | satisfied Counted merits instance applied / merits basis: pleaded The court accepted the pleaded leave, constructive discharge, and termination as materially adverse at Rule 12(b)(6). | retaliation/leave-and-termination-after-charge | Next, she alleges that she suffered a series of adverse employment actions, including putting her on administrative leave, taking legal action against her, changing the educational requirements for her position, constructively discharging her, and terminating her.Source: docroot/ir/caselaw/f_supp_3d_380.jsonl#/f-supp-3d/380/0783-01; Unicode character offsets [7611:7875] (end exclusive); SHA-256 ae65194fc22e806d299e7b218c92596a3be1c881f1451e66c47790b7cf1aad24.An action is materially adverse if it might have 'dissuaded a reasonable worker from making or supporting a charge of discrimination.'Source: docroot/ir/caselaw/f_supp_3d_380.jsonl#/f-supp-3d/380/0783-01; Unicode character offsets [7877:8011] (end exclusive); SHA-256 ae65194fc22e806d299e7b218c92596a3be1c881f1451e66c47790b7cf1aad24.Moreover, Spratt's allegations that she was placed on administrative leave and endured months of adverse workplace conduct following her EEOC charge is sufficient to deter a reasonable employee from engaging in future protected activity.Source: docroot/ir/caselaw/f_supp_3d_380.jsonl#/f-supp-3d/380/0783-01; Unicode character offsets [8472:8709] (end exclusive); SHA-256 ae65194fc22e806d299e7b218c92596a3be1c881f1451e66c47790b7cf1aad24. |
| Rivera-Rivera v. Medina & Medina, Inc. — 898 F.3d 77 (2018) · United States Court of Appeals for the First Circuit · 2018 — satisfied · triable (29usc623: author: Flash2 · QA: FIX (Fable, neov2/cases/TRIAGE-Flash.md)) | Judicial material-adversity standard for retaliation | satisfied Counted merits instance applied / merits basis: triable The employer argued that post-charge harassment merely continued the pre-charge shouting; the court answered that the termination threats were new and tied to the charges. The court sustained a retaliatory constructive-discharge theory on the same evidence. | daily-threats-of-termination-after-charge-then-resignation | Indeed, Rivera explained that after she filed the charges, Pepín "screamed and shouted [at] me, and intimidated me by telling me that I was going to be discharged due to the discrimination charge[s] filed[,]" and that he "also referred to me with foul language, due to the discrimination charge filed."Source: docroot/ir/caselaw/f3d_898.jsonl#/f3d/898/0077-01; Unicode character offsets [33750:34052] (end exclusive); SHA-256 be64c8b4debd470b0441ae1b9da004135e2b7606cc80df001bc6df2750d2e3d6.But, upon her return back to work, she was "immediately" threatened once more with termination and was, again, shouted and screamed at "due to the discrimination charge filed."Source: docroot/ir/caselaw/f3d_898.jsonl#/f3d/898/0077-01; Unicode character offsets [34262:34438] (end exclusive); SHA-256 be64c8b4debd470b0441ae1b9da004135e2b7606cc80df001bc6df2750d2e3d6.A reasonable person could surely be dissuaded from reporting her employer's discriminatory acts if she knows she will be continuously threatened with termination as a direct result of protesting discriminatory treatment.Source: docroot/ir/caselaw/f3d_898.jsonl#/f3d/898/0077-01; Unicode character offsets [35775:35995] (end exclusive); SHA-256 be64c8b4debd470b0441ae1b9da004135e2b7606cc80df001bc6df2750d2e3d6.Given that Rivera alleges she was regularly threatened and intimidated with firing because she reported Medina for alleged discrimination, we believe there is at least a question of fact as to whether such harassment was severe or pervasive enough to constitute a retaliatory hostile work environment.Source: docroot/ir/caselaw/f3d_898.jsonl#/f3d/898/0077-01; Unicode character offsets [35996:36297] (end exclusive); SHA-256 be64c8b4debd470b0441ae1b9da004135e2b7606cc80df001bc6df2750d2e3d6. |
| Davis-Garett v. Urban Outfitters, Inc. — 921 F.3d 30 (2019) · United States Court of Appeals for the Second Circuit · 2019 — satisfied · triable (29usc623: author: Astra4 · not independently reviewed) | Judicial material-adversity standard for retaliation | satisfied Counted merits instance applied / merits basis: triable The court vacates summary judgment and remands for trial. The alleged retaliatory transfer denial raises a triable material-adversity issue under the proper standard, not a proven final liability finding. | retaliation/transfer-denial-after-hotline-complaint | However, Garett was not transferred to Edgewater. Soon after Garett's Edgewater interview, Shearer received a call from Anthropologie's regional manager Jen Berry, who informed her of Garett's late-August hotline call and complaint about Shearer's handling of Garett's transfer request. (See id. ¶¶ 52-53.) It was in this telephone conversation that the decision not to transfer Garett to the Edgewater store was made. (See id. ¶ 54; Deposition of Amy Shearer ("Shearer Dep.") at 79-80.) Although Garett testified in her deposition that she did not know who made the decision to deny approval of her transfer to Edgewater (see Garett Dep. 163), she inferred in her affidavit that it was a "retaliat[ory]" decision made by "Shearer instantly" upon learning of Garett's complaint against her (Garett Aff. ¶ 54).Source: docroot/ir/caselaw/f3d_921.jsonl#/f3d/921/0030-01; Unicode character offsets [10931:11740] (end exclusive); SHA-256 d3b4abda9b979025ac492543c26131c9c5310e43746649f023d41554dbcad96e.We have considered all of Anthropologie's appellate arguments in support of summary judgment and have found them to be without merit. The judgment is vacated, and the matter is remanded for trial of Garett's ADEA claims of hostile work environment and retaliation, and for further consideration of her claims under state laws.Source: docroot/ir/caselaw/f3d_921.jsonl#/f3d/921/0030-01; Unicode character offsets [54151:54477] (end exclusive); SHA-256 d3b4abda9b979025ac492543c26131c9c5310e43746649f023d41554dbcad96e.a reasonable employee would have found the challenged action materially adverseSource: docroot/ir/caselaw/f3d_921.jsonl#/f3d/921/0030-01; Unicode character offsets [36793:36872] (end exclusive); SHA-256 d3b4abda9b979025ac492543c26131c9c5310e43746649f023d41554dbcad96e. |
Court interpretations
interpretation
Rather, a plaintiff may recover for retaliation by "show[ing] that a reasonable employee would have found the challenged action materially adverse , which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination ." Id . at 68, 126 S.Ct. 2405 (internal quotation marks omitted (emphases ours)).
Davis-Garett v. Urban Outfitters, Inc. — 921 F.3d 30 (2019) · United States Court of Appeals for the Second Circuit · 2019 (29usc623: author: Astra4 · not independently reviewed)
Rather, a plaintiff may recover for retaliation by "show[ing] that a reasonable employee would have found the challenged action materially adverse , which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination ." Id . at 68, 126 S.Ct. 2405 (internal quotation marks omitted (emphases ours)).Source:
docroot/ir/caselaw/f3d_921.jsonl#/f3d/921/0030-01; Unicode character offsets [36726:37086] (end exclusive); SHA-256 d3b4abda9b979025ac492543c26131c9c5310e43746649f023d41554dbcad96e.Davis-Garett applies Burlington Northern: harm need not change employment terms, but trivial slights do not suffice. Evaluate context and employer knowledge of protected conduct.