Takeaway: Claims of discrimination or retaliation based on an adverse employment action are unlikely to succeed where the plaintiff employee has suffered no financial harm. Courts generally will not view the realignment of job responsibilities or a mere workplace inconvenience as rising to the level of a materially adverse change in the terms and conditions of employment without an accompanying decrease in salary, benefits or advancement opportunities.
An employee’s complaints regarding realignment of her role and the temporary revocation of her flexible work privileges after taking leave under both the Family and Medical Leave Act (FMLA) and her employer’s leave policy did not support a finding of an adverse employment action, the 6th U.S. Circuit Court of Appeals recently ruled.
An Ohio-based recruiter for a car manufacturer took FMLA leave for depression and anxiety in May through June 2017, following her father’s death. She was approved for intermittent FMLA leave throughout 2018.
In 2018, the recruiter received a “less than successful” performance review because of her “lack of focus and attention to detail” and attendance issues. After returning from a period of FMLA leave in April 2018, she was placed on a performance improvement plan. She filed an ethics complaint with the employer, alleging inconsistent application of its FMLA policy, but the company’s investigator found her claims were unsubstantiated.
The plaintiff’s role shifted during the time she was a recruiter. She started recruiting only for full-time employees, then was moved to recruit only for contingent positions in 2018. She recruited for both full-time and contingent positions in 2019 and reported to two supervisors: a team coordinator for full-time recruiting and a manager for contingent recruiting.
When the plaintiff again sought FMLA leave in November 2019, the team coordinator told the HR department that she suspected the employee was taking the leave for nonmedical reasons. The employer denied the FMLA leave request because the employee didn’t provide timely medical documentation, but it granted her leave under its company leave policy. While the plaintiff was on leave, the team coordinator identified performance deficiencies in her contingent recruiting tasks. As a result, upon her return to work she was assigned to recruit for full-time positions only. The realignment meant that the plaintiff reported to the team coordinator only, her desk was moved, and she temporarily lost the ability to work remotely. However, her salary, title, benefits and promotion eligibility were not affected.
The plaintiff filed another ethics complaint in January 2020, which resulted in the team coordinator receiving “a documented coaching for inappropriately sharing confidential information” because she had told other workers that the employee was suspended. The investigator also found the plaintiff had attendance issues unrelated to her FMLA leave, such as arriving late, leaving early and making last-minute requests for remote work and paid time off.
The plaintiff was approved for FMLA leave from Jan. 21 to March 25, 2020, but resigned as her leave was ending. She reapplied to work for the employer about six months later, and the team coordinator rehired her. Before returning to work, the plaintiff sued the company for disability discrimination, retaliation for engaging in protected conduct, and FMLA retaliation. A federal district court granted summary judgment to the employer on all claims.
Appelate Court
On appeal, the 6th Circuit emphasized that the plaintiff must show she suffered an adverse employment action—a materially adverse change in the terms and conditions of her employment—to establish any of her claims. In the discrimination context, such an action usually inflicts direct economic harm and must be more than a “mere inconvenience or an alteration of job responsibilities,” the court said. In the retaliation context, the court added, adverse employment actions include any conduct that would have “dissuaded a reasonable worker from making or supporting [an FMLA claim].” The court said that de minimis employment actions are not considered materially adverse for purposes of either claim.
The plaintiff’s reassignment to recruiting exclusively for full-time positions was not an adverse employment action, the court held, stating that employment shifts without changes in salary, benefits, title or work hours usually do not constitute adverse employment actions. The plaintiff’s title remained “recruiter,” her benefits were unchanged and both recruiting roles provided the same opportunities for advancement, so this was just an alteration of her job responsibilities, the court stated.
Similarly, reporting to only one supervisor and having to work in person at her relocated desk do not qualify as adverse employment actions, the court said. The plaintiff’s suspension from remote work was only temporary while she completed training, thus is a de minimis employment action that didn’t rise to the level of a materially adverse employment decision. Although the plaintiff complained about increased supervision, the court noted that even intense supervision is not an adverse employment action where the employee is not terminated or demoted and did not have her pay rate reduced, benefits lessened or responsibilities diminished.
The court found the plaintiff was not constructively discharged, stating that she had failed to show that a reasonable person would find the conditions objectively intolerable and offered no evidence the employer had acted deliberately to force her to resign. Concluding that she failed to show an adverse employment action, the appeals court affirmed the district court’s grant of summary judgment.
Erwin v. Honda North America, 6th Cir., No. 22-3823 (April 21, 2023).
Rosemarie Lally, J.D., is a freelance legal writer based in Washington, D.C.