By Erica Shelley Nelson and Brennen Johnson
In Burns v. City of Utica, the Second Circuit U.S. Court of Appeals affirmed the dismissal of a female firefighter’s lawsuit against the City of Utica, New York. The Firefighter claimed in her lawsuit that the City had retaliated against her for reporting an incident of sexual assault by denying her application for disability benefits. After reviewing a U.S. district court’s decision to dismiss the Firefighter’s lawsuit, the Court of Appeals determined that the dismissal was warranted where the Firefighter failed to show that any negative consequences stemming from the denial of her disability application was attributable to the City.
The City of Utica hired Burns, the female firefighter, in June of 2003. In September of 2010, the Firefighter alleged that a coworker had sexually assaulted her at work earlier in the Spring of that year. She filed a formal complaint and the City’s Office of Corporation Counsel launched an investigation into the incident. Later that fall, the Firefighter was diagnosed by her treating physician as suffering from Post-Traumatic Stress Disorder (PTSD) caused by the assault.
After applying for disability benefits, another Physician conducted a psychiatric evaluation of the Firefighter at the request of the City. That doctor determined that the Firefighter did not suffer from PTSD and opined that she could return to work. Based upon this second opinion, the Firefighter’s request for benefits was denied. Although she appealed that decision, an independent arbitrator upheld the denial of benefits. The denial of her disability application resulted in the Firefighter needing to take an unpaid leave of absence pursuant to the Family and Medical Leave Act. When she returned to work after nearly a year long absence, the Firefighter was then required to undergo a certain amount of remedial training.
The Firefighter brought her lawsuit claiming that, by denying her disability application and requiring remedial training upon her return, the City was retaliating against her following the formal sexual assault complaint she filed. She complained that filing a complaint was a protected activity and that the City had violated her rights by retaliating against her. In response, the City argued that it had only directed her to return to work after an independent arbitrator determined that she was not disabled. It also argued that remedial training after an absence should not be considered an adverse employment action.
The Court explained that, to be successful in her lawsuit, the Firefighter would need to show that (1) she engaged in a protected activity, (2) the City knew about the activity, (3) the City took adverse employment action against her, and (4) the adverse action was motivated by the protected activity. Although reporting sexual harassment is a protected activity, and the City was aware that the Firefighter had filed her complaint, the Court determined that the Firefighter failed to show any form of adverse employment action, or that the things she complained of were motivated by her complaint of sexual harassment.
The Court explained that “an adverse employment action is a materially adverse change in the terms and conditions of employment.” Examples of “material adverse changes” included, termination, demotion, decrease in wage or salary, a less distinguished title, a loss of benefits, or significantly diminished responsibilities.
Next, the Court compared the facts from the Firefighter’s allegations with its definition of “adverse employment action,” stating:
“While it is undisputed that Burns was not terminated or demoted, Burns asserts that she suffered other adverse actions. These other actions, however, are neither adverse… nor attributable to any action by the city… Burns was required to return to work at her previous position only after an independent arbitrator determined that she was not disabled. That decision was not an adverse employment action… Moreover, the fact that Burns lost sick leave pay was not the result of any retaliation by the City—the days of work she missed were not covered by sick leave because the arbitrator determined that she was not disabled. Finally, the fact that Burns was required to undergo remedial training after missing so much work was not an adverse action. Rather, requiring such training was a reasonable safety precaution to ensure that Burns could perform her duties as a firefighter after being absent from work for several months.”
Under these facts, the Court determined that the City had not done anything wrong. Based on this reasoning, the Court of Appeals determined that the district court properly dismissed the lawsuit in favor of the City.
The Firefighter just simply did not have enough facts to show the City took “adverse employment actions” against her. An “adverse employment action” must be more than an inconvenience or alteration of job responsibilities. While the plaintiff believed the remedial training was retaliation, her belief is not enough to meet the standard. Even though “economic harm” is not necessarily required under the standard, the Court was clearly persuaded by the fact she returned to her same position with no reduction in pay. If the City had reassigned, or demoted her, for example, her claim may have survived dismissal, fortunately for the City, those facts did not exist.
