THIS action fell just short of possible discrimination and retaliation. (Whew!)

The plaintiff in this action has worked as a human resource specialist. She claimed that, beginning in 2019, her male supervisor made unwelcome sexual comments to her, and, when she reported those comments to his direct supervisor, they were ignored. So the plaintiff says she filed an Equal Employment Opportunity (“EEO”) complaint. According to the plaintiff, nearly two years later, she faced a proposed letter of reprimand. 

A proposed what now?

According to the plaintiff, on August 17, 2021, the defendant, her employer, issued a proposed letter of reprimand related to an April 2019 incident during which the plaintiff allegedly improperly allowed unauthorized telework. According to the plaintiff, an investigation already found the allegations unsubstantiated. The following month, she submitted a rebuttal to the proposed letter of reprimand.

Could a “proposed letter of reprimand” be discriminatory?

Early on in a case, at least to withstand a motion to dismiss, a plaintiff need only allege that she suffered an adverse employment action because of some protected class. In the case, the plaintiff claimed sex discrimination.

An adverse action affects an employee’s terms, conditions, or privileges of employment.

What about the proposed discipline here?

Well, the plaintiff did not contend that it was ever issued or resulted in any professional consequences, such as an office transfer, a change in responsibilities, or anything to suggest that the terms and conditions of her employment were affected at all. 

No discrimination.

Could a “proposed letter of reprimand” be retaliatory?

There are fundamental differences between discrimination and retaliation. The latter is not limited to actions affecting the terms, conditions, or privileges of employment. A “materially adverse action” will suffice.

But what is that?

An action is “materially adverse” when “it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.”

So, how about a proposed letter of reprimand?

Courts are generally unwilling to conclude that proposed discipline is materially adverse, even when the plaintiff claims to have suffered a tarnished reputation or emotional distress. So, a proposed letter of discipline with no professional consequences won’t cross the line.

So what’s an employer to do?

The allegations here are unique. But, it’s a good reminder that employers need to practice the basics: a clear set of policies and procedures, consistent documentation and communication of performance issues, and discipline where appropriate. And, of course, take all complaints of harassment seriously.