In Patterson v. EPA, 391 F. Supp. 2d 140 (D.D.C. 2005), a federal district court judge found that an SES employee failed to state a prima facie case of discrimination based on race and retaliation because the employment actions allegedly taken against him by the EPA did not constitute “adverse actions” under Title VII.

Since 1998, Harvey Patterson served as an SES level Director with the EPA. In 2000, the EPA assigned Mr. Patterson a new immediate supervisor. Plaintiff alleged that soon after his new supervisor discriminated against him when she: (1) overrode his selection of a subordinate; (2) cancelled his pre-approved leave; (3) did not select him to serve as Acting Director for one day; (4) ordered him to use a computer software program not required of white employees; and (5) interfered with management of his division. Additionally, Mr. Patterson alleged that the EPA retaliated against him when his supervisor transferred him to another section of the same EPA division. When the EPA transferred Mr. Patterson, he continued at the same grade level and pay. However, Mr. Patterson alleged that the reassignment “carried substantially fewer responsibilities and was no more than a ‘glorified GS-12 position.'”

The judge decided that the employment actions alleged in Mr. Patterson’s complaint were not adverse because he did not suffer from a decrease in pay, diminution of benefits, or an action that had a “materially adverse consequence affecting the terms, conditions, or privileges of employment.” For an employer to engage in an adverse employment action against an employee, there must be a “tangible change in the duties or working conditions constituting a material employment disadvantage.”

Mr. Patterson alleged that his supervisor interfered with his management of direct subordinates and undermined his authority to make assignments, evaluate performance, and institute corrective actions. The judge determined that Mr. Patterson’s supervisor had the authority to micromanage Mr. Patterson’s subordinates because Mr. Patterson’s position description indicated that his supervisory duties could be controlled by higher level agency officials. Mr. Patterson did not have sole decision-making power over his staff. The judge also decided that the EPA’s failure to select Mr. Patterson as the Acting Deputy Director for one day did not constitute an adverse action. Mr. Patterson failed to make a “clear showing” of tangible economic harm when the EPA denied him the “acting” opportunity.

Finally, the judge rejected Mr. Patterson’s retaliation claim because the EPA provided legitimate non-discriminatory reasons for his reassignment. Mr. Patterson alleged that the new SES position had fewer responsibilities. However, the judge determined that the new position actually entailed significant duties because high-level EPA officials specifically cited the importance of Mr. Patterson’s new position in letters to the Office of Management and Budget and in testimony before Congress.

Determination of whether an employment action rises to the level of an adverse action is fact specific. For example, if an agency took away from an employee significant duties listed in his or her position description or denied the employee the opportunity to serve in an “acting” capacity on multiple occasions, a judge could find that an employer materially altered a term or condition of employment. Therefore, when identifying employment actions that are subjectively adverse, one should also identify a specific, tangible harm that resulted from the employment action.

* This information is provided by the attorneys at
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