It was a long-time commonplace in federal case law that a mere threat to terminate an employee was not a "materially adverse action" under employment discrimination law. But at least under the anti-retaliation provision of Title VII, the Second Circuit seems to have recognized that such a threat may be actionable in light of Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006). The court also holds that a hostile response to an harassment complaint can itself constitute retaliation.
Rivera v. Rochester Genesee Regional Transportation Authority, No. 11-762 (2d Cir. Dec. 21, 2012): Two employees jointly brought a Title VII, section 1981 and New York State Human Rights Law case charging their employer (RGRTA) with neglecting their complaints of race and national-origin harassment (one plaintiff named Talton is African-American, the other named Rivera is Puerto Rican). In addition, both alleged that when they complained about harassment, the employer threatened termination and even responded to Talton "by laughing and . . . telling [him] that he 'should just 'suck it up and get over it, nigger!'"
The district court granted summary judgment, holding that any harassment of Rivera was motivated by personal conflict, not national origin, and that Talton had presented insufficient evidence that the harassment was severe or pervasive. The district court also dismissed the retaliation claims on the ground that the plaintiffs could not allegedly "establish adverse employment actions, or a causal connection between those actions and their protected activity."
The Second Circuit reverses in substantial part (other than Rivera's retaliation claim). It holds that both plaintiffs presented sufficient evidence that a trier of fact could conclude that each was a victim of harassment and that the harassment was motivated by race and national origin. Although Rivera's situation was complicated by the fact that one of the harassers was also a romantic rival (the alleged harasser was living with Rivera's former spouse), there was also evidence that co-workers were motivated by illegal discriminatory purposes [citations omitted]:
"First, Rivera testified that [co-workers] Folino or Driscoll called him 'spic' 'probably like three times.' Although Rivera was unable to provide information about the specific timing and circumstances of these 'spic' slurs, he testified more specifically that Folino and Driscoll together chanted another slur - "What's that smell . . . there is Taco Bell" - at least once after Rivera pulled into a Lift Line garage. Rivera variously testified that he heard the same chant anywhere from '[e]very time' he pulled into the garage to 'about five' times. We are obliged to consider the defendants' alleged uses of slurs 'cumulatively in order to obtain a realistic view of the work environment,' and to determine whether they 'alter[ed] the conditions of [Rivera's] employment and create[d] an abusive working environment.' Second, Rivera's testimony was corroborated by Talton's deposition testimony, and that of other non-party witnesses who provided evidence about ethnically and racially hostile comments made outside of Rivera's presence, both about River and about Talton. Third, in addition to the evidence of the use of ethnic slurs, Rivera offered detailed testimony about extensive bullying and physical harassment by Folino and others that occurred during the relevant period. A reasonable jury could conclude that the alleged incidents of harassment in the record, including the slurs, constituted more than 'mere offensive utterance[s].'"
Likewise, Talton presented sufficient evidence of multiple incidents of allegedly being called by racial slurs, as well as verbally and physically threatening behavior by white co-workers.
On the retaliation claim, though Rivera's dismissal was affirmed, summary judgment on Talton was reversed.
"Talton presented evidence, in the form of deposition testimony, that [supervisor] Tiberio suggested that he could lose his job for filing complaints of discrimination. Talton's testimony echoed a previously filed EEOC charge in which he alleged that Tiberio had once indicated 'that [Talton] could get fired for the filing of the EEOC charge' and 'said that 'this you[r] job too.'' A reasonable juror could find both that Tiberio threatened Talton with the loss of his job, and that this threat would 'dissuade a reasonable worker from making or supporting a charge of discrimination.' Burlington Northern, 548 U.S. at 68 (quotation marks omitted).
"Talton also presented evidence that when he complained to Tiberio about his co-workers' use of racial slurs, Tiberio told him to 'suck it up and get over it, nigger!' In our view, such discriminatory harassment from a supervisor may alone suffice to establish an adverse employment action, as 'unchecked retaliatory co-worker harassment, if sufficiently severe, may constitute adverse employment action so as to satisfy the [third] prong of the retaliation prima facie case.' [Citation omitted.]"
This decision may prove extraordinarily useful in cases where an employer's agent avoids outright firing or disciplining an employee who has opposed discrimination, but swings his or her weight around in a menacing way.