8th Circuit Compares Material and Trivial Harms in Retaliation Claim

August 22, 2007 (PLANSPONSOR.com) - The 8th U.S. Circuit Court of Appeals has determined an employer's disciplinary and employment actions toward an employee who had made a complaint of discrimination were not materially adverse and thus did not support a claim of retaliation.

In its opinion, the appellate court used the standard established in the U.S. Supreme Court case, Burlington N. & Santa Fe Ry. Co. v. White, which considers whether the employer’s actions were materially adverse enough that ” a reasonable employee in the plaintiff’s position might have been dissuaded from making a discrimination claim because of the employer’s retaliatory actions.” The court found Jessica T. Devin failed to allege a materially adverse employment action against her, and, even if she had established such an action, there was no causal relationship between her protected conduct and the alleged retaliatory actions.

Devin alleged several retaliatory actions by Schwan’s Home Service, Inc., including she was denied pay guarantees given to male employees; her manager interfered with her inventory; she was unfairly disciplined; supervisors discussed that she had twice as many customer complaints as other deliverers; she was denied a Route Builder (a person who makes sales calls on behalf of the deliverer); and her discrimination complaints were not fairly considered at a performance review. The court said Devin showed scant evidence of any of the alleged actions.

Evidence showed Devin was paid according to her written pay agreement; her manager was on her truck, but there was no evidence showing he interfered with her inventory; and during the performance review she was given the opportunity to bring up any matters of concerns and she did not. In addition, whether there was any significant disadvantage caused by the denial of a Route Builder was questionable. Further, the court said Devin failed to show any causal connection between the alleged actions and her complaint of discrimination.

Citing the Supreme Court case, the 8th Circuit opinion said, “[I]t is important to separate significant from trivial harms. . . . An employee’s decision to report discriminatory behavior cannot immunize that employee from those petty slights or minor annoyances that often take place at work and that all employees experience.” The court added, “Because she does not suggest these actions caused any harm, let alone significant harm, we conclude they would not have deterred a reasonable employee from engaging in protected activity.”

The opinion in Devin v. Schwan’s Home Service, Inc. is here .