Issue: Whether ‘counseling letter’ is ‘adverse action’
Published: July 26, 2012
Tags: Employment Discrimination, Federal Courts, Judge Glen E. Conrad
This tempest over a coffee cup started with a dirty cup left in a workplace sink, escalated into a testy email exchange and wound up in federal court in Charlottesville.
And the conflict between coworkers is not over yet.
The Title VII suit filed by Carol Koenig against her employer, an Army intelligence agency, may shed some light on whether a “counseling letter” counts as “adverse employment action” under Title VII.
It does, Koenig says, when she’s the one who received the letter, and her alleged equal-offender coworker did not.
Here’s how it started, according to Koenig’s complaint:
On Thursday, Aug. 2, 2007, Koenig’s African-American coworker, Dorsell Williams, left an unwashed cup and spoon in the sink of the employee kitchen.
The following Monday, Koenig, who is white and served on the kitchen-cleaning committee, threw away the cup and spoon.
Williams sent Koenig an email inquiring about the items and saying the cup had a particular scene and “footprint in the sand verse” and had sentimental value.
Koenig’s reply email asked if it was the same cup that had been left in the sink “most of last week.”
Williams’ next email equated Koenig’s actions to “stealing” and a later email said Williams took “comfort in knowing in the Bible God says vengeance is mine.”
Williams also sent an email about the incident to the agency’s Equal Employment Opportunity officer, the security officer and agency legal counsel.
Koenig pursued a complaint through her supervisor, and later emailed a complaint to others up the chain of command for the employer, the Army’s National Ground Intelligence Center in Charlottesville.
Koenig claimed she had been threatened, libeled and disrespected by “disparaging my volunteer coffee committee efforts” in her selection of brands of tea.
She also alleged Williams had created a “racially undertoned hostile work environment at NGIC.”
Several days later, NGIC’s legal counsel sent Koenig a sternly worded letter telling her the libel claim was baseless, no third party would reasonably construe the scripture quote about “vengeance” as a personal, physical threat and he saw “absolutely no case for misconduct based on what you’ve presented.
“What I do see,” the letter continued, “is a tit-for-tat preemptive attempt on your part to try and dissuade your chain [of command] from acting upon your own misdeed. I can assure you this, that I will completely, thoroughly, and successfully defend any such frivolous action you may bring against the government.”
Koenig received a “warning letter” from her direct supervisor stating that her “unacceptable behavior towards Ms. Williams was discourteous and will not be tolerated.” She alleged Williams did not receive a warning letter or any other form of discipline. She sued under Title VII, claiming race discrimination, retaliation and hostile work environment.
The agency asked U.S. District Judge Glen E. Conrad to dismiss Koenig’s suit because, among other grounds, the letter accusing her of “discourteous” treatment of a coworker was not the kind of workplace penalty covered by Title VII.
But Conrad said it’s not entirely clear from case law “whether a claim of discriminatory discipline requires the level of adverse action ordinarily required to pursue a claim under Title VII.”
Although the agency cited cases that rejected written reprimands as “adverse employment action,” those cases all were decided on a fuller summary judgment record. The letter to Koenig described the possibility of formal disciplinary action, and some courts have held that a counseling letter could be adverse action if it affected the likelihood that a plaintiff could be terminated.
Conrad dismissed the hostile environment claim, but he refused to dismiss Koenig’s Title VII claims for discriminatory discipline and retaliation.
Although the two technical specialists in Koenig v. McHugh (VLW 012-3-325) “did not engage in precisely the same underlying conduct, the court is unable to conclude, at this stage of the litigation, that the employees’ actions were not of comparable gravity,” Conrad wrote.
Charlottesville lawyer John B. Simpson, who represents Koenig, confirmed that the case is still pending. Court documents filed by the government anticipate the need for protective orders because of security issues due to the “nature of the government facility involved.”
Interesting.
Tucker Griffin Barnes
Charlottesville, VA (434-973-7474)
Inquire@TGBlaw.com
http://www.tgblaw.com/
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