Issue: Retaliation claim cannot be premised on personality conflicts and petty slights

For the week of April 14, 2008

Title VII of the Civil Rights Act prohibits retaliation against an employee who has initiated or participated in a proceeding protected under that Act. Such retaliation typically consists of an adverse employment action taken against the individual by the employer. As one element of a prima facie case of retaliation, the employee must show the alleged retaliatory action was "materially" adverse. This element requires courts to determine whether the challenged action "might have dissuaded a reasonable worker from making or supporting a charge of discrimination." To this end, courts consistently have held that in order to be materially adverse, an action has to have a significant impact on the individual’s employment.

The 8th U.S. Circuit Court of Appeals recently held that incidents of "ostracism" complained of by a university professor amounted to no more than "nonactionable petty slights" that did not support a claim of retaliation. Recio v. Creighton University, 8th Circ. No. 07-2460, April 8, 2008.

In 1994, Nebraska’s Creighton University hired Dr. Roxana Recio as an Associate Professor of Spanish in the school’s Department of Modern Languages and Literature. Recio is a naturalized citizen of Spanish origin. In 2004, another female professor in the department complained about sexually inappropriate communications from Recio. In spite of a recommendation for termination made by the University’s Sexual Harassment Committee, Recio was placed on one-year probation by Creighton’s President, and was directed to complete certain conditions of the probation, including psychological counseling and no contact with the other professor. Recio completed that probation with no violations of the conditions imposed.

On July 14, 2004, Recio filed a charge of discrimination, alleging that the imposition of probation was based on her Spanish national origin. On May 10, 2005, she filed a second charge, alleging that Creighton had retaliated against her for filing that initial charge.

In May 2006, Recio filed a lawsuit alleging that Creighton had retaliated against her for filing the 2004 charge. She set forth numerous alleged acts of retaliation, including issues related to the duration of her probation, denying to her certain teaching and training opportunities, shunning by faculty, and keeping the temperature of her office too cold. The district court granted a motion for summary judgment filed by Creighton, and the decision was upheld on appeal by the Eighth Circuit.

In deciding that Recio had not set forth the "materially adverse" actions necessary to support the retaliation claim, the Eighth Circuit first addressed the issues related to Recio’s probation, teaching, and training. While Recio complained that the school twice extended her probationary period, the Court found that those extensions were based on the fact that Recio spent the summers of 2004 and 2005 in Spain, and that the period was extended to accommodate her schedule. Recio’s complaints about the teaching schedule similarly were related to her trips. Further, the fact that the school disallowed Recio from teaching on her preferred schedule, without any indication that the new schedule change created a material disadvantage to her, was deemed not to have been retaliation.

The Court then addressed the remaining allegations and found them to be lacking, as well. The facts that Recio claims to have gotten the "silent treatment" from co-workers and that she had been excluded from a photo of the Spanish faculty posted on the school’s website were labeled by the Court as "nonactionable petty slights" and were held to be insufficient bases for a claim of retaliation.

Employers should be aware of the distinction between the types of acts alleged by Recio and other acts that actually hinder a professional career – for instance, denying a professor the teaching opportunities that are required in order to obtain tenure – which could, in fact, be deemed to be materially adverse, and therefore could support a claim of retaliation. This case is a reminder that workplace behavior can create liability under certain circumstances, and that supervisors and managers should be trained to recognize those circumstances.