Employment discrimination:  A Title VII retaliation claim must allege objectively deterrent action

In Cook v. Billington, 2011 U.S. Dist. Lexis 88284 (D.D.C. Aug. 9, 2011), the United States District Court for the District of Columbia emphasized that to successfully state a claim for retaliation under Title VII, an employee must allege that when he or she engaged in, or attempted to engage in, a protected activity, his or her employer responded in a materially adverse, or objectively deterrent, manner.

The Howard R.L. Cook & Tommy Shaw Foundation ("the Foundation") is a nonprofit organization comprised of employees of the Library of Congress ("the Library"). The Foundation's activities include assisting Library employees bring employment discrimination suits against the Library. The Foundation repeatedly requested formal recognition by the Library on the basis that such recognition would permit the Foundation to hold meetings at Library facilities and distribute materials to Library employees. The Library repeatedly denied the Foundation's requests.

Ultimately, the Foundation filed a lawsuit against the Library, alleging that the Library's failure to formally recognize the Foundation was a direct response to the Foundation's opposition to employment discrimination at the Library, and thus, constituted unlawful retaliation in violation of Title VII. The Foundation posited that the Library's refusal to recognize the Foundation constituted a materially adverse action because the Foundation's lack of formal recognition could potentially dissuade a Library worker from filing suit against the Library. The Library submitted a motion to dismiss the suit for failure to state a claim upon which relief could be granted, arguing that the denial of recognition did not constitute a materially adverse action because it did not prohibit the Foundation and its members from operating and associating.

Upon consideration of the Library's motion to dismiss, the U.S. District Court instructed that both parties had failed to properly apply the materially adverse standard as articulated by the Supreme Court in Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006). The court reminded that pursuant to this standard, the appropriate legal question is not whether a plaintiff subjectively found an action materially adverse, but rather, whether the action would dissuade the objective, reasonable worker from making or supporting a complaint. It further reminded that a materially adverse action includes not only employer conduct that bars an employee from making, or supporting, a charge of discrimination, but also conduct that could deter a reasonable employee from engaging in these activities. Applying the standard to the facts alleged, the court concluded that the Plaintiff had failed to state a claim upon which relief could be granted because the purported benefits of formal recognition by the Library (i.e., the ability to hold meetings on Library premises and distribute literature to Library employees), were simply not significant enough to deter a reasonable employee from complaining of discrimination for fear of jeopardizing his or her employment.