Semsroth v. City of Wichita, No. 08-3143 (10th Cir. Feb. 17, 2009); Watts v. Services for the Underserved, No. 07-2730 (2d Cir. Feb. 17, 2009)

By Outten & Golden LLP
Feb 16, 2009

Not much going on after the President's Day break. The Tenth Circuit considers whether an initial denial of a transfer (later revoked) constitutes a materially adverse action that "could well dissuade a reasonable worker from making or supporting a charge of discrimination" under Burlington N. & Santa Fe Ry. v. White, 548 U.S. 53 (2006). A district court's hasty dismissal of a pro se Title VII complaint leads to a reversal in an unpublished decision from the Second Circuit.

Semsroth v. City of Wichita, No. 08-3143 (10th Cir. Feb. 17, 2009): When we ask whether -- for purposes of the anti-retaliation section of Title VII -- whether an act "could well dissuade" an employee from opposing work place discrimination, do we mean "dissuade" at the time the action is announced, or "dissuade" in the fullness of time? In other words, are unconsummated threats actionable to the extent that they would discourage protected activity?

The Tenth Circuit holds "no," in a case where a plaintiff peace officer was initially denied a desirable transfer that was later allowed. Apart from doubting whether the denial of a transfer was even actionable (without evidence that the alternaive assignment was objectively superior), the panel holds that the announcement of the denial of the transfer was not actionable as a matter of law:

"Officer Warehime argues that the denial of her transfer request was materially adverse despite the later reversal of the decision, because 'a reasonable employee [would] be dissuaded from making a complaint if they know that they would have a position taken away from them (even though they may get it later).' Aplt. Br. at 19. But this clearly mischaracterizes the relevant circumstances, by treating the initial denial as a completed adverse action in and of itself, in

isolation from the favorable action actually taken on the request. We know of no authority, and Officer Warehime cites none, for truncating the assessment of an employer's response to an employee request in this artificial fashion. A more accurate formulation of the Burlington Northern inquiry here is: would a reasonable employee be dissuaded from making a complaint if she knew that her request for a transfer would be temporarily denied but ultimately granted before the transfer was to take effect? We agree with the district court that the answer to

this inquiry is no."

Watts v. Services for the Underserved, No. 07-2730 (2d Cir. Feb. 17, 2009): Here the panel holds that the swift dismissal of a complaint -- with no opportunity to amend -- was both legally reversible error and an abuse of discretion: "Applying the notice pleading standard of Rule 8, the District Court ruled that plaintiff's complaint did not provide 'a short and plain statement of the claim showing that the pleader is entitled to relief,' Fed. R. Civ. P. 8(a)(2), because (1) plaintiff had not alleged that she was adversely affected by defendant's decision to reassign her, and (2) plaintiff did not allege her religion or the religion and race of her former colleagues and supervisors [citation omitted]. The record contradicts the District Court's first conclusion because plaintiff specifically alleged in her complaint that she had received a 'demotion.' In addition, it was legally erroneous at the pleadings stage to credit a letter submitted by defendant stating that plaintiff maintained the same work schedule and title after her transfer. [Citation omitted.] Regarding the District Court's second conclusion, we are mindful that, as the Supreme Court has recently explained, '[a] document filed pro se is to be liberally construed, and a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.' Erickson v. Pardus, 551 U.S. __, 127 S. Ct. 2197, 2200 (2007) (citations and internal quotation marks omitted). Under these circumstances-where the ground for dismissal is quite narrow and the plaintiff appears pro se - it was error to enter judgment just two days after dismissing the complaint, rather than permitting plaintiff at least one chance to cure a pleading defect."