Magazine article HRMagazine

Court Rejects Retaliation, Constructive Discharge Claims

Magazine article HRMagazine

Court Rejects Retaliation, Constructive Discharge Claims

Article excerpt

AuBuchon v. Geithner, 8th Cir., No. 12-3991.

An employee could not establish a Title VII retaliation claim when the facts clearly demonstrated that there was no open position to which he could be promoted, and the other alleged retaliatory acts were not sufficiently "materially adverse" to result in his constructive discharge, the 8th U.S. Circuit Court of Appeals ruled.

Gary AuBuchon was an international examiner for the Internal Revenue Service (IRS). In that role, he examined the tax returns of large taxpayers and handled related international issues. In March 2007, AuBuchon applied for a promotion to a senior international examiner position. Promotions from international examiner to senior international examiner occur only when the complexity of the case necessitates the expertise of a senior international examiner. IRS examiners seeking promotion to a senior international examiner position must first be assigned to a case requiring a senior international examiner and must then apply for that particular case's senior position.

AuBuchon alleges he should have been promoted to a senior international examiner on one of his cases. In December 2007, he filed a charge of discrimination with the Equal Employment Opportunity Commission alleging race and sex discrimination. AuBuchon alleged that during the two years following his charge, he was unlawfully retaliated against by the IRS and was ultimately forced to retire early.

AuBuchon filed suit against Secretary of the Treasury Timothy Geithner for retaliation under Title VII of the Civil Rights Act of 1964. He also alleged that the IRS's retaliatory actions resulted in his constructive discharge. The IRS was granted summary judgment on all of AuBuchon's claims, and AuBuchon appealed.

The 8th Circuit affirmed summary judgment, finding that the IRS had taken no "materially adverse" employment action against AuBuchon. To prove a materially adverse employment action in a Title VII retaliation claim, the court noted, a charging employee must show that the employer's actions after the charge was filed would dissuade a reasonable employee from making or supporting a charge of discrimination.

The court stated that while a failure to promote can be materially adverse under certain circumstances, an employer is not legally required to create a position simply to promote the complaining employee. …

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