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Recent Case Developments and What Constitutes an Adverse Employment Action?


In a recent case, Kobos v. Target Corporation, our local federal district court (the Eastern District of New York), dismissed a lawsuit against Target for employment discrimination. Not only is this a recent case, but it is useful in illustrating a number of legal issues re: discrimination lawsuits against employers.

The plaintiff was a 62-year-old woman “of Polish nationality”. The Riverhead Target hired her around 2007 as a “Team Member”, to work in the store wherever needed. Eventually, the plaintiff was assigned to a specific department, where she had a supervisor.

The plaintiff claimed that in March, 2014, the supervisor called the plaintiff “crazy” in front of co-workers for walking to work in a snowstorm; and after being reprimanded by the Store Team Leader for doing so, the supervisor began giving the plaintiff difficult and unfair work assignments, and reduced her hours.

In late May, 2014, the plaintiff went on a medical leave of absence and never returned to work. Target eventually fired the plaintiff for not returning to work.

The plaintiff then sued Target for discrimination based on age, based on national origin, for creating a hostile work environment, and for retaliation, under various federal and New York State laws. Eventually, Target moved to have the case dismissed (called a motion for summary judgment--a kind of mini-trial on paper).

The court dismissed all the claims against Target. The court focused on the fact that one of the “elements” of discrimination claims alleged by the plaintiff is that the plaintiff suffered an "adverse employment action”, which is defined as "a materially adverse change in the terms and conditions of employment."

The court concluded that nothing Target or plaintiff’s supervisor had done amounted to an "adverse employment action”:
Asking Plaintiff to restrain from discussing her personal issues at work is not an adverse employment action. Nor does forbidding Plaintiff from asking for extra hours raise to the level of a "materially adverse change in the terms and conditions of employment," especially given that Plaintiff continued to work more or the same number of hours as her coworkers …Furthermore, "comments" do not constitute an adverse employment action when the only comments alleged occurred on an extremely limited number of occasions and do not relate in any discernible way to Plaintiff's age. Finally, favoring younger employees by assigning them different duties does not constitute an adverse employment action when the only evidence of this in the record was a request to unload shoes—a request which Plaintiff did not complete and for which Plaintiff was not fired or disciplined.
The court pointed out that the plaintiff did not allege that her actual termination was an "adverse employment action”. It would certainly qualify as one. But the plaintiff seemed to agree there was nothing improper about her actual firing.
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