Takeaway: In 2006, the U.S. Supreme Court created a flexible standard for showing a materially adverse action to support a retaliation claim. Despite that flexibility, some seemingly harmful decisions have not qualified as adverse actions under the Supreme Court's standard.
The 7th U.S. Circuit Court of Appeals recently upheld the dismissal of a plaintiff's claims at summary judgment that stemmed from when she was reprimanded and fired after reporting sexual harassment.
The plaintiff began working at the Jesse Brown Department of Veterans Affairs (VA) Medical Center in Chicago as a medical instrument technician in 2006. She assisted physicians during colonoscopies and endoscopies, stocked the procedure room with sterile instruments and interacted with patients.
The plaintiff began treatment for adjustment disorder, anxiety and depressed mood in 2016. In August 2016, a patient sent the VA a letter complaining about how the plaintiff had treated him. The plaintiff's supervisor issued her an admonishment for unprofessional and inappropriate conduct, which was later reduced to a written letter of counseling. In September 2016, the plaintiff requested an accommodation of four weeks of leave to address her mental health.
Thereafter, the plaintiff engaged in, and was the victim of, workplace misconduct. In the fall of 2016, a VA employee who was dating the plaintiff's second-level supervisor made sexual remarks to her. She complained to VA management about the comments.
In January 2017, the plaintiff was part of a workplace dispute with a co-worker in which she called her co-worker a slang word for a prostitute. Following an investigation, she received a letter of reprimand for inappropriate conduct in March 2017.
In June 2017, a nurse reported that the plaintiff failed to prepare a procedure room, which caused a delay, and that she had been intimidating and rude. That same month, the second-level supervisor's boyfriend again made sexual remarks to the plaintiff, and she complained to management a second time.
In July 2017, the plaintiff had a disagreement with a co-worker in front of a patient.
The plaintiff submitted a written request for an accommodation in August 2017, asking to be transferred out of her nursing service because of her mental health conditions. In September 2017, the nurse executive addressed her accommodation request and the VA decided to transfer the plaintiff to sterile processing services, where she would work under a different supervisor.
In that new position, the plaintiff was reported for violating the scope sterilization protocol and was temporarily reassigned. In October 2017, the nurse executive issued to the plaintiff a notice of proposed removal based on 1) failure to follow the scope protocol; 2) failure to carry out assigned work, which delayed patient care; and 3) conduct unbecoming a federal employee.
The plaintiff received a removal letter, accompanied by a last chance agreement, in November 2017. In the last chance agreement, the VA promised to hold her removal in abeyance for two years if she made various promises, including promising to waive her right to bring existing or future claims against the VA and her right to use the Equal Employment Opportunity (EEO) complaints procedure. The plaintiff rejected the last chance agreement and was terminated.
The plaintiff filed a complaint with the EEO office, alleging discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964 and the Rehabilitation Act of 1973.
In February 2019, the plaintiff sued the VA. The VA moved for summary judgment, which the district court granted. The plaintiff appealed to the 7th Circuit.
The plaintiff argued that the VA retaliated against her by reprimanding her in March 2017, by failing to follow progressive discipline and by requiring her to sign an unlawful waiver in her last chance agreement. The 7th Circuit ruled that the written reprimand was not a material adverse employment action because it did not come with a low performance rating or a pay cut. It could only be used to determine an appropriate penalty if further misconduct occurred.
The 7th Circuit further found that the plaintiff could not show retaliation because the discipline was issued by the nurse executive and not her second-level supervisor. It also found that she engaged in misconduct that broke any causal chain between her protected conduct and her disciplinary action. Finally, the court found that even if the last chance agreement contained unlawful terms, the plaintiff was terminated for her misconduct.
Therefore, the 7th Circuit upheld the decision of the district court.
Fuller v. McDonough, 7th Cir., No. 22-2478 (Oct. 18, 2023).
Jeffrey Rhodes is an attorney with McInroy, Rigby & Rhodes LLP in Arlington, Va.
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