August 2001

The United States Court of Appeals for the Third Circuit recently addressed the issue of whether placing a written reprimand in an employee's personnel file constitutes an "adverse employment action" for purposes of analyzing a retaliation claim. Fortunately for employers, the Court answered the question "no." Specifically, in Weston v. Commonwealth of Pennsylvania, 251 F.3d 420 (3d. Cir. 2001), Plaintiff Michael Weston, a prison employee, sued his employer, the Pennsylvania Department of Corrections, and a co-worker for sexual harassment and retaliation under Title VII of the Civil Rights Act of 1964, as amended ("Title VII"). With respect to his retaliation claim, Weston alleged that he suffered 4 discrete "adverse employment actions" following his complaints of hostile work environment sexual harassment, as follows: two suspensions without pay and two written reprimands for inappropriate workplace conduct that were placed in his personnel file for a period of 6 months.

In order to bring a retaliation claim, the employee must -- at a minimum -- prove that he or she engaged in "protected activity", that the employer took an "adverse employment action" after or contemporaneous with the "protected activity", and that a causal link exists between the "protected activity" and the "adverse employment action." While it was undisputed that Weston's sexual harassment complaints were "protected activities", and that his two suspensions without pay were "adverse employment actions", the parties disagreed as to whether the two written reprimands could be deemed "adverse employment actions".

The United States Supreme Court defines an "adverse employment action" as a "significant change in employment status, such as hiring, firing, failing to promote, reassignment, or a decision causing a significant change in benefits". Burlington Industries v. Ellerth, 524 U.S. 742 (1998). Applying the foregoing definition, the lower court, the United States District Court for the Eastern District of Pennsylvania, concluded that Weston's two written reprimands WERE "adverse employment actions" for the following reasons. First, the District Court stressed that the reprimands were placed in Weston's personnel file. Second, the District Court concluded that although the Third Circuit had previously ruled that oral reprimands were NOT sufficiently "adverse" to support a retaliation case in Robinson v. City of Pittsburgh, 120 F.3d 1286 (3d. Cir. 1997), Weston's reprimands rose to a level serious enough to trigger retaliation because of their "presumed" effect on his compensation and the terms and conditions of his employment. The Third Circuit disagreed.

According to the Third Circuit, Weston failed to establish that the two written reprimands materially affected the terms and conditions of his employment. Specifically. the Court noted that Weston "was not demoted in title, did not have his work schedule changed, was not reassigned to a different position or location in the prison, did not have his hours or work changed or altered in any way, and was not denied any pay raise or promotion as a result of these reprimands." The Court also pointed out that the reprimands were of a "temporary nature" in that they were not permanently inserted into his personnel file, but rather would remain for only 6 months. As such, the Third Circuit ruled that Weston's written reprimands, although made a part of his personnel file, were NOT "adverse employment actions" which could support a Title VII retaliation claim.

Be careful, however. Note that the Third Circuit did NOT address the following questions -- What if Weston's reprimands had been placed in his personnel file permanently? And, what if the written reprimands were part of a progressive disciplinary process that could lead to a change in Weston's status, compensation, benefits, etc.? Had they been faced with these facts, the Third Circuit may have ruled differently. Keep this in mind when disciplining employees who have complained about unlawful workplace discrimination or engaged in other "protected activities".