Burden for Proving Reprisal
In Caldwell v. Johnson, Environmental Protection Agency, No. 05-1706 (Aug. 15, 2008), the United States Court of Appeals for Fourth Circuit held that Supreme Court’s ruling in Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 67-68 (2006), which lowered the burden for private sector plaintiffs alleging retaliation, also applies to federal employees. Under White, an employee need not suffer an “adverse action” to establish a prima facie case of retaliation, but instead must show only that a reasonable employee would have found the challenged action “materially adverse,” meaning that “it might well have dissuaded a reasonable worker from making or supporting a charge of discrimination.”
In Caldwell, the appellant suffered various forms of retaliation, including interference with her promotion opportunities, delay in approving her alterative work schedule, being set up to miss a deadline, and receiving a formal letter of warning. The district court granted summary judgment in favor of EPA, finding that the appellant failed to show that EPA took an “adverse employment action” against her, e.g., removal or suspension, because none of the actions she complained of affected the “terms, conditions or benefits” of her employment. On appeal, the appellant argued that the district court erred because it should have applied the standard set forth in White where the Supreme Court determined that the private sector anti-retaliation statute provides substantially broader protection than had previously been applied and that plaintiffs were not required to show that he/she suffered an “adverse action” to make out a retaliation claim.
In its decision, the Fourth Circuit noted that, unlike the statute that protects private sector employees, the statute barring retaliation against federal employees requires that the challenged action be a “personnel action,” a term which Congress did not define. The EPA contended that “personnel actions” included only actions that had a direct monetary impact on an employee. The Fourth Circuit, however, held that the relevant statutory language contradicts this contention. The EPA then claimed that Congress must have intended to include the “adverse action” requirement because otherwise it would have adopted the identical language from the private employment context. The Fourth Circuit likewise found this contention unsupported, explaining that cases decided before White supported the proposition that the anti-retaliation standard that applies to private employees also applies to federal employees.
The Fourth Circuit concluded that “it would be illogical for Congress to impose an additional element of proof on federal employees when it has provided identical remedies for federal and private employees who allege retaliation.” The Court noted that other circuits that have addressed the question have also all applied the White standard. See e.g., Lapka v. Chertoff, 517 F.3d 974, 985-86 (7th Cir. 2008) (applying White standard to DHS employee); Patterson v. Johnson, 505 F.3d 1296, 1299 (D.C. Cir. 2007) (applying White to EPA employee); Nair v. Nicholson, 464 F.3d 766, 768-69 (7th Cir. 2006) (stating that “it is now settled that retaliation to be actionable need not take the form of an adverse employment action” in case involving federal employee).
Thus, for a federal employee to establish a prima facie case of retaliation, she must show: 1) that she engaged in protected activity, 2) that her agency took materially adverse action against her, such that it could dissuade a reasonable worker from making or supporting a charge of discrimination, and 3) that a causal relationship existed between the protected activity and the materially adverse activity.
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