Second Circuit Clarifies What an “Adverse Employment Action” Is For Purposes of a Discrimination Claim

“To make out a prima facie [employment] discrimination claim [under Title VII of the Civil Rights Act of 1964], a plaintiff must demonstrate … (1) [he] was within the protected class; (2) [he] was qualified for the position; (3) [he] was subject to an adverse employment action; and (4) the adverse action occurred under circumstances giving rise to an inference of discrimination.” Chung v. City Univ. of New York, No. 14-3611-CV, 2015 WL 1428192, (2d Cir. Mar. 31, 2015) (emphasis added).

In Chung, the Second Circuit affirmed the dismissal of plaintiff’s race and national origin discrimination claims because plaintiff did not sufficiently allege that he suffered an “adverse employment action”.

The court elaborated on that element:

For purposes of a Title VII discrimination claim by a person already employed, an adverse employment action is defined in our Circuit as a materially adverse change in the terms and conditions of employment. Such a change must be more disruptive than a mere inconvenience or an alteration of job responsibilities. Examples include termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices … unique to a particular situation.

Plaintiff alleged that he suffered an adverse employment action in the form of a negative performance evaluation, and a variety of events summarized by the court as follows:

(1) Plaintiff was required to perform certain low-level tasks that fall outside his job description; (2) student workers were assigned tasks for which Plaintiff was better qualified and that did fall within his job description; (3) Plaintiff was denied access to relevant computer programs, updates, and workshops; and (4) Plaintiff was excluded from, and denied notice of, at least two staff meetings and at least five meetings with student assistants.

The court explained why plaintiff’s claims didn’t quite cut it:

Even if true, these alleged facts do not constitute an adverse employment action. Significantly, with the exception of the negative performance evaluation and the staff meetings, none of the allegations describes a substantial departure from the state of affairs at the outset of the limitations period. To the contrary, Plaintiff specifically alleges that he had already suffered a substantial reduction in his duties and responsibilities upon a departmental transfer that took place in 2006. The allegations concerning that 2006 transfer describe incidents mirroring those detailed above, including the assignment of low-level tasks and the denial of certain resources and training opportunities.

The key allegation, then, is the November 2009 performance evaluation. However, as Plaintiff concedes, a negative performance review, without more, does not represent an adverse employment action. … Here, the proposed amended complaint alleges no tangible consequences resulting from the evaluation; indeed, as noted above, the purported diminution in responsibilities and access predated the issuance of the evaluation.

For the reasons already discussed, Plaintiff’s argument that the performance evaluation must be viewed in conjunction with the other alleged misconduct fails, as none of the other allegations points to a significant reduction in duties during the limitations period. The allegation regarding exclusion from seven meetings, five of which Plaintiff acknowledges were for student assistants, cannot be said to represent a “significant” diminution in Plaintiff’s material job responsibilities.

We therefore conclude that the proposed amended complaint fails to plausibly allege that Plaintiff suffered an adverse employment action during the limitations period.

While this case was dismissed, it nevertheless provides insight into what courts are looking for when evaluating these claims.

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