Wednesday, November 12, 2008

“Laying the smackdown” is not an adverse employment action

An adverse employment action in a discrimination case is an action by an employer that effects a significant change in one’s employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.

In Mathirampuzha v. Potter (2nd Cir. 11/3/08), the 2nd Circuit decided that an employee who had been physically assaulted by a supervisor had not suffered an adverse employment action. Ron Sacco, a supervisor but not Mathirampuzha’s direct supervisor, grabbed his arm, punched him in the shoulder and the chest, spit in his face, and poked him in the eye. Mathirampuzha’s direct supervisor immediately intervened to separate the parties. After a union official filed a complaint on Mathirampuzha’s behalf, the employer issued Sacco a formal written warning a transferred him to a different facility.

The court held that Sacco’s physical assault of Mathirampuzha did not rise to the level of an adverse employment action:

Only in limited circumstances does a single, acute incident of abuse qualify as an adverse employment action. In the context of hostile work environment claims, we have stated that a single event, if “extraordinarily severe,” could alter the conditions of a working environment…. A “single incident of rape,” for example, “sufficiently alters the conditions of the victim’s employment and clearly creates an abusive work environment for purposes of 29 Title VII liability for sex-based discrimination.

Sacco’s aggressive conduct toward the plaintiff … was not an adverse employment action. After the incident took place, the plaintiff continued to work at the Wallingford plant in the same position, at the same pay, and with the same responsibilities. Indeed, there is no evidence that the assault brought lasting harm to the plaintiff’s ability to do his job. The physical encounter itself, while understandably upsetting, was not so severe as to alter materially the plaintiff’s working conditions -- unlike, for example, a rape, … or an obscene and humiliating verbal tirade that undermines the victim’s authority in the workplace…. The Postal Service’s response to the incident, moreover, while not immediate, ultimately ameliorated the plaintiff’s working conditions, as Sacco was eventually disciplined and transferred to another work assignment for at least one year.

Nobody is a bigger proponent than me of not turning our anti-discrimination laws into a general workplace civility code. But, do we want to draw a bright line in the sand, with grabbing, punching, poking, and spitting on one side, and rape on the other? Do we want African-American employees who are targeted with violence to be scuttled out of court on a summary judgment motion? Do we want women browbeaten by their male co-workers to have to raped before they can file a claim? The line drawn by the court in this case simply seems unreasonable.