Not Everything Counts As Workplace Retaliation

By harley erbe

Financial Stress

As Des Moines employment lawyers, we often receive calls from folks who believe that they have been the victim of retaliation at the workplace. Perhaps that retaliation was for filing a wage, overtime, disability discrimination, or FMLA claim. The retaliation often takes the form of a discharge and generates a possible claim under Des Moines wrongful termination law. But here's an important point -- Not all retaliation is created equal and some things that people think of as retaliation aren't considered retaliation under the law.

A retaliation claim requires proof of an "adverse employment action." That requirement means that not all employer conduct generates a retaliation claim. Adverse employment action detrimentally affects the terms, conditions, or privileges of employment. A wide variety of facts can constitute a materially adverse employment action. The definition of an "adverse employment action" includes subtle conduct such as depriving an employee of the opportunity to advance, as well as more obvious actions such as disciplinary demotion, termination, unjustified evaluations and reports, loss of normal work assignments, and extension of probationary period. Internal transfers from department to department can also constitute adverse employment action when accompanied by a negative change in the terms and conditions of employment. But internal transfers involving minor changes in working conditions and no reduction in pay or benefits will not constitute an adverse employment action. In other words, minor changes in working conditions that only amount to an inconvenience cannot support discrimination.  

In Colbert v. State of Iowa, the Iowa Court of Appeals recently determined that a supervisor's actions against an employee were not sufficiently severe to constitute adverse employment action. The plaintiff alleged several retaliatory acts, including her supervisor trying to force her to leave her position, her supervisor “berating” her for her complaints of verbal and physical harassment, the failure to investigate her internal complaints, and her supervisor’s attempt to undermine her civil rights complaint in his interview with the DAS. The court held that her employer's activities did not amount to adverse employment action: "Even if the acts complained of occurred in the manner described by Colbert, no adverse employment action resulted. The record reveals a toxic work environment existed, but does not show how the 'terms, conditions, or privileges of [her] employment' were impacted by this work environment."

What about physical attacks? Can they count as an adverse employment action sufficient to support a retaliation claim? Two Iowa cases have considered that question.

A physical attack was determined to have constituted an adverse employment action in Estate of Harris v. Papa John's Pizza. The assistant manager of a Papa John’s restaurant punched a subordinate employee in the chest for reporting an alleged affair between the assistant manager and another employee. The subordinate employee subsequently died from the punch. The Iowa Supreme Court concluded that the chest shot could be construed as an adverse employment action attributable to Papa John’s because the employee’s death resulted in the termination of his employment.”

Conversely, in Colbert the Iowa Court of Appeals ruled that a physical attack was not sufficient to constitute an adverse employment action and support a retaliation claim. After disagreeing with a decision made by her supervisor, the employee attempted to discuss the issue with other co-workers. Her supervisor admitted that he “snapped” and began to yell at her, grabbing her arm and directing her into his office where he continued to yell at her and physically prevented her from leaving for a time. The court decided that the arm grab and related physical contact did not constitute an adverse employment action. The situation was different than in the Papa John's case because, unlike that employee, Colbert did not die or suffer any other employment action as a result of her supervisor's physical contact.

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