Fourth Circuit Holds That Supervisor’s “Warning” Constitutes Adverse Action

In Maron v. Va. Polytechnic Inst. & State Univ., No. 12-1146, 2013 U.S. App. LEXIS 2333 (4th Cir. Jan. 31, 2013), the Fourth Circuit found that a supervisor’s verbal warning, coupled with other facts, could constitute an adverse action under Title VII’s anti-retaliation provisions, 42 U.S.C. § 2000e-3(a).  In so holding, the Fourth Circuit reversed the trial court’s grant of judgment as a matter of law in favor of the employer following a jury verdict of $61,000.00 in plaintiff’s favor on her retaliation claim.  In so holding, the Court found that the warnings given to plaintiff, coupled with other actions taken by the employer, rose above the level of “petty slights [and] minor annoyances” to constitute a materially adverse action.  

In Maron, plaintiff made numerous internal complaints to her employer’s Vice President for University Development, Ms. Elizabeth Flanagan, alleging that plaintiff was paid less than male employees in comparable positions.  Following these complaints, Flanagan arranged a meeting with plaintiff to discuss her performance.  At trial, Plaintiff testified that, during the meeting, Flanagan told plaintiff that plaintiff had “shown very poor judgment” and should “stop pursuing the things that [she was] pursuing or [plaintiff would] ruin [her] career in a very public way.”  Flanagan advised plaintiff that she should “become invisible” and “stay off the radar for the next six months at a minimum.”  Flanagan also allegedly warned plaintiff that Flanagan would be “watching [plaintiff] very, very closely.”  Finally, Plaintiff testified that she was told by her direct supervisor that he did not “know what [plaintiff] did, but whatever [plaintiff] did [she] really pissed [Flanagan] off,” and they “had it out for [plaintiff].”  In addition, plaintiff adduced evidence at trial that she was subject to performance metrics not required of other employees, and that employer attempted to replace plaintiff when plaintiff went out on sick leave.

The jury returned a verdict in plaintiff’s favor, finding that she had been retaliated against for complaining about unlawful discrimination.  Following trial, the district court, Senior Judge Turk of the Western District of Virginia, granted the employer’s motion for judgment as a matter of law.  The district court found that the conduct complained of by plaintiff did not, as a matter of law, constitute a “materially adverse” action as required by Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006).  See, e.g., Holland v. Wash. Homes, Inc., 487 F.3d 208 (4th Cir. 2007) (setting forth the elements of a retaliation claim).  In the district court’s view, the supervisor’s warning was of a kind with the “petty slights, minor annoyances, and simple lack of good manners” which would not deter a reasonable employee from complaining.  Maron v. Polytechnic Inst. & State Univ., No. 7:08-cv-00579, 2011 U.S. Dist. LEXIS 69360 at *13-*14 (W.D. Va. June 29, 2011). 

A panel of the Fourth Circuit consisting of Judges Niemeyer, Keenan, and Diaz reversed the district court in a per curiam decision.  The Court explained that, drawing all reasonable inferences in favor of plaintiff, and without weighing the evidence or assessing credibility, that plaintiff’s account of her employer’s actions provided sufficient evidence from which a jury could have concluded that plaintiff suffered a materially adverse employment action.  

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