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by M. McClure on Jun 17, 2009 at 4:19 PM

The Eighth Circuit Court of Appeals reaffirmed its previous holding that a prima facie case for retaliation requires a "materially adverse" action that produces "injury or harm." Littleton v. Pilot Travel Centers, LLC.  The court in Littleton found that an employer's corrective memo to an employee did not constitute retaliation.  

In Littleton, the employee filed a charge of discrimination with the EEOC alleging that he had been denied pay increases because of his race. Seven months after the charge was filed, the plaintiff was disciplined for inappropriate comments at a customer location.  The court found that the corrective notice did not impact the employee's career and that too much time had elapsed between the time of the charge and the corrective notice to create a causal connection.  One interesting piece of the court's analysis included the court's reliance on a supervisor's informal investigation of the complaint about the plaintiff's conduct. The court found that the company acted reasonably when it based its discipline of plaintiff on informal, undocumented employee interviews conducted by the supervisor.    

Bottom Line:  Employers in the Eighth Circuit, including Arkansas, can continue to issue employee discipline that is in accordance with the employer's practice, even after an employee has filed a charge of discrimination.  When an employee files a charge or lodges an internal complaint, the employer should proceed cautiously with future discipline, but the company is by no means barred from taking disciplinary action.

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