By William R. Horwitz
According to the U.S. Court of Appeals for the Second Circuit, a District Court erred when it held that reducing an employee’s discretionary bonus cannot constitute an “adverse employment action” – a necessary element of a discrimination claim. The Second Circuit issued its decision last week in Davis v. New York City Dep’t of Educ., 2015 WL 6118183 (2d Cir. Oct. 19, 2015). In Davis, the District Court had relied on Seventh Circuit precedents in reaching its holding, but the Second Circuit clarified that those precedents “are not the law in this circuit.” Although Davis is a disability discrimination case, the Second Circuit signaled that the same principle applies to other types of discrimination cases as well.
The Americans With Disabilities Act (the “ADA”) prohibits an employer from discriminating “against a qualified individual on the basis of a disability in regard to … employee compensation … and other terms, conditions, and privileges of employment.” 42 U.S.C. § 12112(a).
In December 1998, plaintiff Catherine Davis began her employment with defendant New York City Department of Education (the “DOE”). She began as a substitute teacher and later worked as a health teacher. From 2002 to 2009, she worked at a New York City junior high school. Under a collective bargaining agreement between the DOE and Davis’s labor union, the school had the discretion to award bonuses to teachers from money the school received from the DOE for high student achievement.
In October 2008, Davis was injured in a car accident and took an unpaid medical leave of absence for several months. When the school later awarded bonuses to teachers for student achievement, a union representative indicated that Davis’s award would be divided between Davis and the substitute teacher who covered her classes during her leave. Davis received a $1,000 bonus, while other teachers received $3,000 bonuses. Davis filed a charge with the Equal Employment Opportunity Commission (“EEOC”) alleging disability discrimination. The EEOC issued a Right to Sue Letter and Davis filed a lawsuit in the U.S. District Court for the Eastern District of New York.
The District Court
In her lawsuit, Davis alleged that the DOE violated the ADA by reducing her bonus because of her disability. The DOE filed a Motion for Summary Judgment, seeking dismissal of the lawsuit. The DOE argued that reducing Davis’s bonus was appropriate in light of her absence and the fact that the substitute teacher deserved a share of the bonus. The District Court granted the motion and dismissed the lawsuit. According to the District Court, reducing the bonus from $3,000 to $1,000 did not constitute an adverse employment action under the ADA, because the DOE had the discretion to decide the amount of the award. Davis appealed.
The Second Circuit
The Second Circuit explained that, in order to establish a claim under the ADA, a plaintiff must establish that: (1) the ADA applies to the employer; (2) the plaintiff has a disability or is perceived to have a disability; (3) the plaintiff was otherwise qualified to perform the essential functions of the job with or without reasonable accommodation; (4) the plaintiff suffered an adverse employment action; and (5) the employer took the adverse employment action because of the plaintiff’s disability. In order to establish the last element, a plaintiff must demonstrate that the adverse employment action occurred under circumstances that give rise to an inference of discrimination.
The Second Circuit further explained that Courts consider ADA claims under a burden shifting analysis. Under this approach, if a plaintiff can produce “minimal evidentiary support for the claim of discriminatory motivation,” the burden shifts to the employer “to articulate a non-discriminatory reason for the adverse employment action.” If the employer can articulate this justification, the burden shifts back to the plaintiff to demonstrate that the employer was motivated, at least in part, by discrimination.
The Second Circuit observed that courts have not developed a “bright-line rule” for identifying whether an employment action is an adverse employment action sufficient to provide a basis for a discrimination claim. Generally speaking, according to the Second Circuit, in order to constitute an adverse employment action, the employer’s conduct toward a plaintiff must be “materially adverse” with regard to the terms and conditions of the plaintiff’s employment. It must be more than an inconvenience or a modification of job duties.
The Second Circuit rejected the District Court’s conclusion that reducing non-discretionary bonuses cannot constitute an adverse employment action. The Second Circuit likewise rejected the Seventh Circuit caselaw upon which the District Court had relied. The Second Circuit explained, “[t]he fact that the employer has discretion whether to grant bonuses or raises does not support the conclusion that an employer may freely allocate them on the basis of racial or religious bias, or disability discrimination.” The Second Circuit observed that, in the context of at-will employment, most terms and conditions of employment are subject to the employer’s discretion. The Court listed the following examples of employment actions falling within the discretion of the employer: “[d]eciding which applicant to hire, which employee-at-will to promote, which one should receive additional responsibilities or which one should be fired.” The Second Circuit explained, “[t]he fact that the employer had the right to allocate a bonus on any ground that does not violate the law does not mean that the employer had the right to allocate it on a ground that did violate the law.”
Notwithstanding the District Court’s error, the Second Circuit concluded that the District Court had properly dismissed the lawsuit because, even though Davis could have established that she experienced an adverse employment action, she could not have established that discrimination was a motivating factor in the DOE’s bonus decision. The Second Circuit emphasized the following undisputed facts: (1) Davis missed work for several months; (2) while Davis was absent, she did not contribute to the success that earned bonuses for the teachers; (3) the school needed a substitute teacher during Davis’s absence; and (4) the substitute teacher contributed significantly to the school earning the bonus. Thus, the Second Circuit concluded that plaintiff could not demonstrate that discrimination was a motivating factor in the DOE’s failure to pay Davis a higher bonus. The Second Circuit affirmed the dismissal of the lawsuit.
In Davis, the Second Circuit joined another Circuit, the U.S. Court of Appeals for the District of Columbia Circuit, in holding that the reduction of a discretionary bonus may constitute an adverse employment action. Although Davis was a disability discrimination lawsuit, the Second Circuit will clearly apply the same principle in other types of discrimination cases. It is unclear whether the Seventh Circuit precedents with which the Second Circuit disagreed will remain good law. Regardless, to minimize risk, prudent employers in the Seventh Circuit and elsewhere should ensure that they can justify even discretionary decisions with legitimate, non-discriminatory reasons.