Denial of Additional Shifts Could Constitute Adverse Action for Retaliation Claim under Title VII

Case Background

The employee worked as a server at a restaurant. During the period the plaintiff was employed, she alleged that on multiple occasions she was subject to sexually humiliating comments and unwanted physical contact, including inappropriate touching, by her immediate supervisor.[2] The plaintiff informed management repeatedly of the sexual harassment by her supervisor.  When her employer learned that she had had received legal advice based on the sexual harassment, the plaintiff alleged that she was no longer able to pick up additional shifts at the restaurant.

On July 8, 2010, she filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) in which she alleged discrimination based on sex and retaliation under Title VII.  The employer moved to dismiss the claims.

Retaliation Claims Under Title VII

To support a Retaliation claim under Title VII, a plaintiff must demonstrate: (1) engagement in a protected activity; (2) adverse employment action; and (3) a causal link between the protected activity.  “Adverse employment action includes any retaliatory act or harassment if, but only if, that act or harassment results in an adverse effect on the terms, conditions, or benefits of employment.”[3] An adverse action can also include an employer’s decision to demote an employee or relegate him to “reduced pay, diminished opportunity for promotion, reduced responsibility, or lower rank.”[4]

The Court’s Decision

The District Court held that it was plausible that “a plaintiff serving in a job with a fluctuating schedule where pay is tied closely to the amount and type of hours worked (and where certain shifts are more remunerative than others), could make a showing that the failure to assign additional shifts effectively subjects the plaintiff to ‘reduced pay, diminished opportunity for promotion, reduced responsibility, or lower rank.’”[5] The Court accordingly found that the employee had sufficiently alleged an adverse action and the facts demonstrated a link between her seeking legal advice and the adverse action by the employer.

[1] Ortiz v. Big Bear Events, LLC, 3:12-CV-341-RJC-DCK, 2013 WL 247444 (W.D.N.C. Jan. 23, 2013)

[2] Doc. No. 1–1: Complaint at ¶¶ 23, 36

[3] Von Gunten v. Maryland, 243 F.3d 858, 866 (4th Cir.2001).

[4] Royster v. Costco Wholesale Corp., 378 F.Supp.2d 595, 605 (M.D.N.C.2005).

[5] See Footnote 1.

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