Understanding What is “Materially Adverse” for a Retaliation Claim

In the recently decided Emami v. Bolden, the Eastern District of Virginia handed down guidance for what is to be considered “materially adverse” for the purposes of establishing a cause of action for retaliation.  In that case, the plaintiff worked as an engineer with NASA.  For much of his employment, the plaintiff performed well.  In 2012, however, he was placed on a performance plan, which he objected to, but “performed all of the tasks assigned to him to the fullest extent possible.”  Id. at 4.  In 2013, the plaintiff’s supervisors placed him on a Performance Improvement Plan (“PIP”) that required the plaintiff to submit quarterly reports on some aspects of his work.  Id. at 4-5. Plaintiff submitted reports as required in February and March in an effort to comply with the PIP.  However, the plaintiff was terminated shortly thereafter and filed timely complaints alleging discrimination and retaliation under Title VII.

The court found that a negative performance review, alone, or placement on a PIP, alone, does not constitute a materially adverse action.  Id. at 23.  However, in this case, the PIP was actually implemented and imposed conditions with which the plaintiff’s failure to comply ultimately led to his termination.  Id.  The PIP required the plaintiff to meet the “Needs Improvement” level to keep his job and became subject to a demotion or termination without receiving another PIP.  Id.  The court found that these requirements could dissuade a reasonable employee from making a Charge of Discrimination and therefore could be considered a “materially adverse action.”

This case stands for an important point of law.  Employees who complain about illegal behavior and then receive a negative performance review or are placed on PIP may be able to make out a prima facie case of retaliation if the review or the PIP impose conditions on employment that are later used as a basis for termination.  If you think you have been discriminated against or retaliated for making a complaint, contact our office to schedule an appointment.