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Employment Law Blog
James Tarquin, P.A
As part of our commitment to assist and educate employees in fighting back against the abusive employment practices of employers, we offer a broad range of information about employment law issues in our employment blog

Employee Claims He Was Subjected To Greater Work Load In Retaliation For Sexual Harassment Complaint

Sexual harassment form from employee

Having dedicated their practice to fighting for the rights of employees, our Alachua County, Florida employment law attorneys have learned that employers frequently retaliate against employees who complain about perceived discrimination or harassment in the workplace.  Under the federal employment discrimination laws, such as Title VII of the Civil Rights Act of 1964 (Title VII), the Americans with Disabilities Act, and the Age Discrimination in Employment Act, employees are protected from retaliation when they complain about perceived discrimination or harassment at work. Read on to learn more about employee retaliation and how that can pertain to greater work load.

Materially Adverse Employment Action

However, the federal employment discrimination laws only make it unlawful for employers to subject employees to a materially adverse employment action in retaliation for having complained about perceived discrimination or harassment in workplace.  In most cases, a materially adverse employment action is one that inflicts direct economic harm on the employee. Under well-established law, ultimate employment decisions, such as refusal to hire, denial of promotion, demotion, denial of job benefits, reduction in pay or hours, and discharge, constitute a materially adverse employment action.  Depending on the circumstances, employment actions that fall short of ultimate employment decisions, such as disciplinary actions, disadvantageous transfers, and negative performance evaluations, may constitute a materially adverse employment action.

Unfortunately, not all courts take an expansive view of the type of actions that can be considered a materially adverse employment action.  For example, in minimizing the impact of retaliatory acts that do not inflict direct economic harm on the employee, the U.S. Seventh Circuit Court of Appeals in Smart v. Ball State Univ., 89 F.3d 698 (7th Cir. 2001) found that the alleged retaliatory act at issue was insufficient to constitute a materially adverse employment action because “not everything that makes an employee unhappy is an actionable adverse action.”  Likewise, courts routinely characterize employment actions that fall short of an ultimate employment decision as nothing more than a petty slight, minor annoyance, or trivial punishment that are not prohibited by the anti-retaliation provisions of the federal employment discrimination laws.

Recognizing that many courts take an extremely narrow view of the type of actions that can be considered materially adverse employment actions, employers often retaliate against employees by subjecting them to retaliatory acts that fall short of an ultimate employment decision.  In doing so, employers believe that they will be immune from liability for retaliation because the retaliatory acts are insufficient to constitute a materially adverse employment action.  Stated another way, employers are confident that a judge will ultimately characterize the retaliatory act as a petty slight, minor annoyance, or trivial punishment and dismiss any retaliation claim by declaring that “not everything that makes an employee unhappy is an actionable adverse action.”

Employee Punished For Sexual Harassment Complaint

The recent decision by the U.S. District Court for Nevada in Finnegan v. Washoe County, 2018 WL 4387618 (D. Nev. Sept. 14, 2018) illustrates that some courts recognize that changes in an employee’s duties or working conditions that do not inflict direct economic harm are serious enough to alter the conditions of the victim’s employment and constitute a materially adverse employment action.  In that case, John Finnegan (Finnegan) brought a retaliation claim against his employer, Washoe County Regional Animal Services (Washoe County), pursuant to Title VII.

Finnegan worked as an Animal Services Assistant at Washoe County Animal Services.  His job responsibilities included removing deceased animals from public roads and assisting the public when they reported stray animals.  Finnegan worked with a woman named Doak who he alleged made unwanted “sexual comments and innuendos” to him for approximately four to five years—from 2011 through 2015.  On September 21, 2015, Finnegan complained for the first time to another Washoe County employee, a management employee named Smith, that Doak was sexually harassing him.  After investigating Finnegan’s complaint, Washoe County’s Human Resources Department found that Doak violated Washoe County’s sexual harassment policy and required Doak to take re-training on the policy.

Although Finnegan conceded that Doak stopped harassing him sexually after his complaint, Finnegan claimed that Doak harassed him in other ways.  For example, Finnegan alleged that Doak told other Washoe County employees that Finnegan was a “liar’ and his sexual harassment complaint “had no basis in truth.”  Finnegan further alleged that Doak began “overloading” him with calls to dispose of or relocate animals (assigning him more calls than other employees also on duty at the same time) and causing him to be assigned calls that were geographically spread out and therefore difficult to accomplish efficiently.

On April 21, 2016, Finnegan confronted Doak about his greater work load.  On that day, Finnegan claimed that he had ten to fourteen calls assigned to him even though there were six or seven other officers in the office “doing absolutely nothing.”  Finnegan complained to Doak about his high call volume and told Doak that he was “done working with her.”  Finnegan then left work for the rest of the day.  Finnegan was issued a “Letter of Instruction” for his behavior that day.

Greater Work Load Is Adverse Employment Action

Washoe County filed a motion with the trial court seeking dismissal of Finnegan’s retaliation claim.  In doing so, Washoe County argued that Doak’s assignment of a higher than average call volume to Finnegan did not constitute a materially adverse employment action.  Thus, according to Washoe County, the retaliation Finnegan experienced for complaining about sexual harassment was not prohibited by Title VII.  The trial court rejected Washoe County’s argument.  The trial court found that assigning Finnegan “a higher than average call volume to retaliate against him for filing his sexual harassment complaint” was sufficiently serious to constitute a materially adverse employment action.  The trial court further found that Washoe County failed to “adequately articulate any legitimate, non-retaliatory business reasons for Doak assignment more calls to [Finnegan].”  Thus, the trial court concluded that Finnegan’s retaliation claim must be resolved by a jury.

Free Consultation With Gainesville Retaliation Lawyers

Based in Ocala, Florida and representing employees throughout Central Florida, we have extensive experience representing victims of employment retaliation.  If you have been the victim of retaliation or have questions about your protection from retaliation under employment discrimination laws, please contact our office for a free consultation with our Alachua County, Florida retaliation attorneys.  Our employee rights law firm takes retaliation cases on a contingency fee basis.  This means that there are no attorney’s fees incurred unless there is a recovery and our attorney’s fees come solely from the monetary award that you recover.

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