Dive Brief:
- A school's decision to place a teacher on a performance improvement plan was not an adverse employment action, the 5th Cir. has ruled (Welsh v. Fort Bend Independent School District, No. 19-20239 (5th Cir. Oct. 30, 2019)).
- Guadalupe Welsh, an aquatic science teacher with the school district since 1971, sued under Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act, claiming discrimination based on national origin, sex and age and retaliation. Welsh said several incidents constituted adverse employment actions — being placed on a "Teacher in Need of Assistance" Plan (TINA); not getting a response when she asked for a letter of recommendation; the school district allegedly setting her up for another reprimand by failing to provide her with accommodation information for a student who needed an individualized education plan. She also alleged her associate principal attempted to "poke fun at her" by telling her "take care of your fish" in front of coworkers.
- The court noted that none of the instances Welsh cited could be viewed as adverse employment actions. The appeals court said that adverse employment actions encompass "ultimate employment decisions such as hiring, granting leave, discharging, promoting or compensating" and that an "employment action that does not affect job duties, compensation, or benefits is not an adverse employment action." The TINA and the record of the TINA in Welsh's file did not result in a material loss of job responsibilities, the court said, also observing that the school district had not revoked any of Welsh's privileges or responsibilities, transferred or demoted Welsh and that Welsh's title, hours, salary and benefits did not suffer as a result of the TINA.
Dive Insight:
Whether an action is materially adverse depends on the facts and circumstances of the particular case, according to the U.S. Equal Employment Opportunity Commission guidance on retaliation. "Materially adverse" means any action that might deter a reasonable person from engaging in protected activity.
The U.S. Supreme Court has ruled that transferring a worker to a dirtier, more difficult job within the same pay grade and suspending the worker without pay for more than a month were both adverse actions, according to the guidance. The high court also has said that actionable retaliation includes: "the FBI's refusing to investigate death threats against an agent; the filing of false criminal charges against a former employee; changing the work schedule of a parent who has caretaking responsibilities for school-age children; and excluding an employee from a weekly training lunch that contributes to professional advancement."
On the other hand, petty slights or minor annoyances, which are not likely to prevent an employee from engaging in protected activity, are not "materially adverse," at least when it comes to retaliation, the Commission's guidance says.
The Welsh court noted that, although it had previously held that reprimands could constitute adverse employment actions, it did not have to consider whether reprimands are adverse employment actions because Welsh being put on the performance improvement plan was not a reprimand. Rather, the court said, she "was placed in a growth plan that sought to improve upon her weaknesses."