holding that allegations, which included defendant’s singling out plaintiff for “intense supervision and criticism” did not rise to adverse employment action, because plaintiff “ha[d] not been terminated or demoted, or had his pay reduced, benefits lessened, or responsibilities diminished[]”
How later courts described this case
- holding that allegations, which included defendant’s singling out plaintiff for “intense supervision and criticism” did not rise to adverse employment action, because plaintiff “ha[d] not been terminated or demoted, or had his pay reduced, benefits lessened, or responsibilities diminished[]”
- finding purported retaliatory harassment not sufficiently severe or pervasive where employee claimed that supervisors continually monitored him and subjected his work to criticism
- holding that a warning letter and singling an employee out for criticism did not constitute adverse employment action
- holding no adverse action where plaintiff “put forth virtually no evidence on the overtime issue”
Written by the judges who cited it.
The opinion
COHN, Senior District Judge.
The lead opinion acknowledges that the district court applied an incorrect legal standard but does not feel a remand is necessary. 1 I respectfully disagree. It is not up to an appellate court to assess the quality of the evidence under the correct legal standard in the first instance, as the lead opinion does here. Moreover, in finding that Broska failed to make out a prima facie case for retaliation based on a theory of retaliatory harassment, the lead opinion concludes that Broska’s “allegations can only be conceptualized as claims of minor annoyance, not severe or pervasive harassment.” However, not noticed by the lead opinion is the evidence Broska submitted — his affidavit as well as the affidavits of several co-workers who nearly uniformly state that Broska was subjected to intensive supervision unlike any other carrier, that the level of supervision did not take place in Broska’s absence, and that the intensive supervision ceased about the time Broska filed suit. Whether or not this evidence is sufficient to support a claim of retaliation based on a theory of retaliatory harassment is a matter for the district court to address in the first instance under the correct legal standard, and therefore, in my view, a remand is necessary.
. Unlike the concurring opinion, I agree with the lead opinion’s finding that Broska raised a claim of severe or pervasive retaliatory harassment.