Here’s a list of things that don’t count as retaliation, starting with making faces.

When an employee sues for retaliation after complaining about discrimination, he must prove that he suffered “a materially adverse action” for doing so. Usually, that amounts to discharges, demotions, refusals to hire, refusals to promote, and reprimands.

But, how about a manager making faces?

Not so much, said the Fifth Circuit Court of Appeals in this recent decision. The Fifth Circuit went so far as to call it “a frivolous claim that does not implicate Title VII.”

But, it’s not as if a plaintiff alleging retaliation would take his case all the way to a federal appellate court just on mean faces.

He also alleged that he was retaliated against when he was fired three to four months after filing an EEOC Charge of Discrimination. Well, the problem with that is the timing. Absent some other evidence, the timing must be very close. Conversely, a three-to-four-month gap between an EEOC filing and termination does not suggest retaliatory animus.

But, the plaintiff wasn’t done.

Finally, he claimed that someone threatened to fire him if he complained about the harassment. That doesn’t sound good. But is it that retaliation? Not according to the Fifth Circuit, which noted that “mere threats of firing are not an adverse employment practice.”

***grits teeth, deep inhale***

I’m not so sure that other courts would agree.

A plaintiff needs to establish “a materially adverse action,” not “an adverse employment practice.” For example, the EEOC’s position is that “materially adverse” action includes anything that “might deter a reasonable person from engaging in protected activity.” The Supreme Court also concluded that “materially adverse” action includes anything that “might have dissuaded a reasonable worker from making or supporting a charge of discrimination. So, I’m not sure what the Fifth Circuit was thinking on this.

As for me, if I’m citing his case in one of my briefs, it’s for the mean faces only.

“Doing What’s Right – Not Just What’s Legal”
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