When is Action by an Employer Harmful to the Point that It Dissuades a Reasonable Worker from Complaining?

The Tenth Circuit (the federal appeals court having jurisdiction over Utah) decided last week that three employees did not have a retaliation claim when they were unable to establish that the alleged actions taken against them by the Wichita Police Department would not dissuade a reasonable worker from making a charge of discrimination. In the case, Semsroth v. Wichita, the Court held that an employee who ultimately was granted a transfer that was temporarily denied did not show that a reasonble employee would have found the conduct so objectionable that he or she would not have complained because of it. The Court also ruled that including a fitness-for-duty examination in an employee’s voluntary appearance at a psychological examination was not an event that would cause another employee to refrain from making a charge of discrimination when her appearance at the examination (including the fitness-for-duty component) was entirely voluntary and the employer never used any of the information derived from the fitness-for-duty examination in any personnel action. The Court also ruled that another employee failed to present any objective evidence that the denial of her preferred transfer would dissuade any other employee from complaining since no evidence existed as to the position’s preferred status to other employees.