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Divided panel overturns award to worker who claimed retaliation

2nd Circuit finds worker did not suffer adverse action for complaining of sexual harassment

In a series of recent decisions, the Supreme Court affirmed the importance of protecting employees against retaliation for filing harassment or discrimination complaints. But while its landmark 2006 Burlington Northern & Santa Fe Railway v. White decision relaxed the standard for what constitutes retaliation, just how that standard should be applied continues to provoke debate.

Under Burlington Northern, anything that would deter a reasonable employee in the same situation from making a complaint qualifies as a “materially adverse action” supporting a retaliation claim under Title VII. Whether a particular action would deter someone may depend on the context, the court said. Because this is not a bright-line standard, federal district and appeals courts are still grappling with how it applies to a variety of workplace actions, including reassignments, negative performance evaluations and co-worker harassment.

Verdict Reversed

The facts at issue involved a series of steps Entergy Nuclear Operations took after James Tepperwien, a security officer, complained about a trainer who in separate incidents propositioned him, grabbed his buttocks and put his hand through Tepperwien’s hair. After his first complaint, the company opened an investigation, known as a “fact finding,” into Tepperwien’s use of sick time. After his second complaint, a fact finding involving a missing gas mask resulted in Tepperwien receiving a counseling letter that management rescinded when another employee admitted responsibility.

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Mary Swanton

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