Retaliation Claim Properly Dismissed Against IRS; Disciplinary Threat Was Not an “Adverse Employment Action”

In Mazzeo v. Mnuchin, 17-cv-2686, 2018 WL 4492847 (2d Cir. Sept. 19, 2018) (Summary Order), the court, inter alia, affirmed the dismissal of plaintiff’s retaliation claims under Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act (ADEA), and the Rehabilitation Act.

The court summarized the law:

In order to make out a prima facie case of retaliation under Title VII, the ADEA, or the Rehabilitation Act, a plaintiff must show that (1) he participated in a protected activity; (2) the employer knew of the protected activity; (3) he suffered a materially adverse employment action; and (4) there was a causal connection between the protected activity and the adverse employment action. Kessler v. Westchester Cty. Dep’t of Soc. Servs., 461 F.3d 199, 205–06 (2d Cir. 2006) (Title VII and the ADEA); Treglia v. Town of Manlius, 313 F.3d 713, 719 (2d Cir. 2002) (Rehabilitation Act). To plausibly allege a materially adverse employment action, a plaintiff must allege that his employer’s conduct resulted in a harm that “well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.”

Central to the decision was the conclusion that a mere threat of discipline was not an “adverse employment action”. The Court wrote:

Mazzeo alleged that the IRS retaliated against him for filing an EEOC complaint by threatening him with discipline and a civil action at a meeting and by sending a follow-up email warning that he could face disciplinary action if he caused discord or dissension among IRS employees. Neither the meeting nor the email resulted in material harm to Mazzeo, and merely advising an employee of possible disciplinary action is not, by itself, an adverse action. See Tepperwien v. Entergy Nuclear Operations, Inc., 663 F.3d 556, 570 (2d Cir. 2011) (holding as a matter of law that a “counseling” session and criticism to improve performance or avoid discipline is not an adverse action).

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