In its 2006 Burlington Northern decision, the U.S. Supreme Court lowered the bar for plaintiffs to prove retaliation in federal employment discrimination cases. The Court characterized actionable retaliation as extending beyond cases of termination or demotion, to any tangible employment action that would deter a reasonable person from complaining to the EEOC about discriminatory conduct. Since Burlington Northern, lower federal courts have tried to draw the line as to when the employer's conduct rises to the level of an actionable deterrent.

In October, the Second Circuit Court of Appeals concluded that a series of internal investigations of a complaining employee and a shift change did not rise to the level of actionable retaliation. In Tepperwien v. Entergy Nuclear Operations, Inc., the plaintiff was a security guard at a nuclear plant who alleged that he had been sexually harassed by a male co-worker. After reporting the incident to management, the plaintiff alleged that he had been the subject of several investigations of his work conduct, has been switched to a night shift, and had been the subject of several hostile confrontations from his supervisor.

The Second Circuit concluded that none of these incidents, or the plaintiff's treatment in the aggregate rose to the level of a tangible employment action upon which a retaliation claim could be based. The court noted that simple internal investigations that do not result in actual disciplinary action against the employee are not retaliatory. The supervisor's empty threats and hostile comments were deemed personality conflicts. The shift change was not retaliatory due to evidence that the plaintiff had actually requested the move.

The court appeared influenced by the obvious need for a security company guarding a nuclear facility to rigorously investigate and enforce its workplace procedures. Also, the Second Circuit gave significant weight to an exit interview completed by the plaintiff, where he expressed general satisfaction with his treatment by the employer.

These cases tend to be very fact specific. Another court in a different context could very well find similar treatment to be actionable retaliation. Employers should proceed with caution before disciplining or discharging employees who raise internal or external complaints regarding their work treatment.