In Cardin v. Securitas Security Services USA, Inc., 16-cv-6101, 2018 WL 562941 (S.D.N.Y. Jan. 24, 2018), the court dismissed plaintiff’s employment discrimination claim, due to the absence of an “adverse employment action”, and the facts did not support the requisite inference of discrimination.
In sum: believing plaintiff used his cell phone in the bathroom, plaintiff’s supervisor issued him a write-up – which he destroyed shortly thereafter. This, held the court, negated the existence of an “adverse employment action.”
In order to make out a prima facie case of discrimination under Title VII of the Civil Rights Act of 1964, “plaintiff must establish that (1) he belongs to a protected class; (2) he was qualified for the position that he held; (3) he was subject to an adverse employment action; and (4) the adverse employment action occurred under circumstances giving rise to an interference of discriminatory intent.”
Elaborating on the third element, the court explained:
[N]ot every unpleasant matter short of [discharge or demotion] creates a cause of action. Rather, to allege an adverse employment action, a plaintiff must demonstrate that the plaintiff was subjected to a materially adverse change in the terms and conditions of employment.  Examples of materially adverse employment actions 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.
Applying the law, the court held that plaintiff could not meet this standard:
Construing the facts in the light most favorable to the plaintiff, the plaintiff cannot show that he was subjected to an adverse employment action. The only allegedly adverse employment action the plaintiff points to is Torres’s initial write-up, which was torn up on McGuire’s order approximately twenty minutes after it was delivered. The plaintiff left the meeting in McGuire’s office with the understanding that he was not going to be written up. Statement of Facts ¶ 28. The plaintiff admitted that he received no discipline whatsoever. Id. The plaintiff was not terminated or demoted; none of his job site, title, or his hours were altered; and his hourly compensation has increased after the Restroom Incident. Moreover, the plaintiff testified that, after the Restroom Incident, McGuire “started being all nice ….” Tr. at 23:7-8. The plaintiff also has not had any issue with Torres after the Restroom Incident, id. at 90:23 to 91:3, and he is unaware of any supervisor who has ever been critical of his job performance, id. at 63:21-25. The only lasting employment action arising out of the Restroom Incident was the write-up Torres received for looking into the plaintiff’s stall. Thus, the short-lived write up given to the plaintiff following the Restroom Incident did not amount to an adverse employment action.