Can a supervisor’s memo be an “adverse employment action”?

Lawyers for Alief ISD succeeded in persuading the court to dismiss almost all of Rosemary Tooker’s lawsuit.  Only one nagging issue remains to be litigated, but that one provides an excellent illustration of how retaliation claims work.

The suit included two claims relating to the Fair Labor Standards Act (FLSA).  Ms. Tooker alleged that she was denied overtime pay, and that she was punished for seeking it.  Notice—those are two separate claims.  The court dismissed the overtime claim, mostly due to the plaintiff’s failure to submit evidence to support it.  But that did not mean that the retaliation claim would also be dismissed.

To prove up a retaliation claim, the plaintiff has to show three things: 1) I engaged in “protected activity”; 2) I suffered an “adverse employment action”; and 3) #1 caused #2.  The court held that Ms. Tooker had alleged and provided sufficient evidence of all three to keep her case alive. Thus the court denied the district’s Motion to Dismiss this retaliation claim.

Ms. Tooker persuaded the court that a memo from her supervisor amounted to an adverse action.  Here is the relevant part of the memo:

In addition to your issues above it has come to my attention that you have alleged that you have not been properly compensated for overtime work.  You are hereby directed not to work any overtime unless specifically asked to do so by either Wilton Curry or me. 

 Failure to follow these directives will be viewed as insubordination and/or misconduct; therefore resulting in disciplinary action up to and including a recommendation for termination.

Thus at this point, the employee has not been fired, suspended or demoted. She has been told not to work overtime without specific permission. She has been threatened with harsher action, but only if she violates this very clear directive.  Does that strike you as sufficiently “adverse”?

The court held that it was.  The court pointed out that the general rule in the district was that employees could ask to work overtime.  Here, Ms. Tooker is told that she cannot ask for it—she was to wait to be told, and you sorta get the feeling that that’s not going to happen.  The court put it this way: “Because the potential need for overtime work is sometimes only within the employee’s knowledge, an employee who is barred from seeking prior approval for overtime might effectively lose that overtime and so might be dissuaded from pursuing the protected activity.”

My point here is that the standard for “adverse employment action” is not that high.  This is one reason why plaintiffs have more success with retaliation claims than with other claims. This is a perfect example—the FLSA claim was denied; the retaliation claim lives on.

We don’t know if Ms. Tooker will ultimately succeed with this claim, but having survived the district’s Motion to Dismiss, it’s safe to say that the price of settlement just went up. So let’s be careful about retaliation claims.


 File this one under: RETALIATION