In Cherkasky v. Boyertown Area School District, No. 5:21-cv-5204, 2022 WL 1965899 (E.D.Pa. June 6, 2022), the court, inter alia, denied defendant’s motion to dismiss plaintiff’s retaliation claim – even though it dismissed her underlying sex-based discrimination claims.
This case is an apt example of how a claim of unlawful “retaliation” may survive under Title VII of the Civil Rights Act of 1964, even though the underlying (complained-of) conduct does not itself give rise to a discrimination claim.
From the decision:
Under Title VII, an employer may not discriminate against an employee because she “has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.” 42 U.S.C.A. § 2000e-3(a). To establish a retaliation claim, a plaintiff must show that (i) she engaged in protected activity; (ii) she suffered an adverse employment action; and (iii) a causal connection between the retaliatory act and the protected activity. Moore v. City of Philadelphia, 461 F.3d 331, 341 (3d Cir. 2006).
*9 In the context of a claim of retaliation, the bar to prove an adverse employment action is lower than it is in the context of a discrimination claim. The plaintiff need only show that the challenged action might have dissuaded a reasonable employee from making or supporting a charge of discrimination. Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 54 (2006).
The District does not dispute that Cherkasky was engaged in a protected activity. It contends only that her claim of retaliation should be dismissed because she did not suffer an adverse employment action. Specifically, the District argues that Cherkasky’s lowered rating on her performance evaluation is not retaliation as a matter of law. The Court agrees with the District that a negative performance evaluation by itself is not an adverse employment action. See Tucker v. Merck & Co., 131 F. App’x 852, 857 (3d Cir. 2005). However, Cherkasky pleads more than that in the Amended Complaint.
For example, she also alleges that the District intentionally hid its policy on sexual harassment after she asked for it. She alleges that extra District officials attended her end of year evaluation. Importantly, she alleges that the District excluded her from a mandatory meeting for teachers in her department. See Burlington, 548 U.S. 53, 69 (2006). (explaining that excluding an employee from important work meetings could constitute unlawful retaliation).
The court concluded by noting that while the defendant “may find these examples to be trivial,” a jury could likewise so find, and plaintiff was required only to “allege facts that give her claim of retaliation facial plausibility.” Here, she did so, as she “pleaded sufficient facts to show that the District’s actions may have dissuaded a reasonable employee from making or supporting a charge of discrimination,” warranting dismissal of the motion to dismiss.