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Counseling Letter May Be ‘Adverse Action’

A Charlottesville U.S. District Court declines to dismiss disparate discipline and retaliation claims under Title VII filed by a Caucasian female who alleges her African-American female coworker was not treated as harshly when the two women allegedly had a dispute over plaintiff throwing away a dirty coffee cup and spoon the coworker left in the workplace sink, and the coworker allegedly equated the act to theft and threatened plaintiff with a Bible verse about vengeance.

Plaintiff alleges she received a warning letter describing her disposal of the unwashed cup and spoon as “unacceptable” and “discourteous,” whereas her coworker received no warning letter or any discipline as a result of conduct or emails related to plaintiff and the coffee cup and spoon. Defendant maintains the letter of counseling sent to plaintiff does not rise to the level of an adverse employment action under Title VII.

It is not entirely clear from the existing case law whether a claim of discriminatory discipline requires the level of adverse action ordinarily required to pursue a claim under Title VII. In this case, plaintiff was issued a letter of counseling by defendant. While defendant has cited several cases in which courts have held that a written reprimand did not constitute an adverse employment action, all the cases highlighted by defendant were decided on summary judgment, following further development of the record. Moreover, as plaintiff emphasizes in her brief, courts have held that a written warning or letter of counseling may rise to the level of adverse employment action if it affects the likelihood that plaintiff will be terminated, undermines plaintiff’s current position, or affects the plaintiff’s future employment opportunities. Given plaintiff’s assertion that the counseling letter subjected her to more serious discipline than she would have otherwise faced if the letter had not been issued, the court is unable to conclude, at this stage of the litigation, that plaintiff did not suffer an adverse employment action.

Alternatively, defendant seeks dismissal on the basis that plaintiff and her coworker “engaged in different conduct,” and thus are not proper comparators. The court is constrained to conclude that plaintiff’s discriminatory discipline claim is sufficient to withstand defendant’s motion to dismiss. The actions of both technical specialists originated from the unwashed cup and spoon deposited in the employee kitchen sink; the coworker left the items in the sink for several days, which ultimately led to their disposal by plaintiff. Plaintiff alleges she acted “in accordance with applicable regulations” by disposing of the items, whereas the coworker’s “conduct in leaving her dirty cup and spoon in the employee kitchen sink was not in accordance with applicable established rules, directives or regulations.” Plaintiff was ultimately cited for being “discourteous” to a coworker and she maintains the coworker engaged in similar misconduct by sending discourteous emails, one of which arguably threatened “vengeance.” The court is unable to conclude at this stage that the employees’’ actions were not of comparable gravity.

The court also declines to dismiss plaintiff’s retaliation claim. She asserts she engaged in protected activity when she sent an email complaining about the coworker’s conduct and alleged her coworker had created a “racially undertoned hostile work environment.” The standard for demonstrating a materially adverse action is somewhat “less stringent” for a retaliation claim than it is for a substantive discrimination claim, and the court concludes plaintiff’s allegations are sufficient to withstand a motion to dismiss. The court does, however, dismiss plaintiff’s hostile work environment claim, as plaintiff has not alleged facts that describe the type of severe or pervasive race-based harassment necessary for such a claim.

Koenig v. McHugh, Sec’y of the Army (Conrad) No. 3:11cv00060, March 23, 2012; USDC at Charlottesville, Va. VLW 012-3-331, 13 pp.


VLW 012-3-331

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