A Non-Material Threat

By Joe Hunt

In Brandon v. Sage Corp., No. 14-51320 (5th Cir. Dec. 10, 2015), the Fifth Circuit addressed whether a threat to cut a supervisor’s pay in half was, by itself, a “materially adverse employment action.” The plaintiff was a manager for a truck driving school in San Antonio. She reported up, through her manager, to the company’s president. When a part-owner of the company discovered that the plaintiff had hired a transgender woman, the part-owner threatened to cut the plaintiff’s salary in half. The plaintiff resigned and sued for retaliation under Title VII. The court noted that a realistic threat to drastically reduce an employee’s pay might deter a reasonable person from supporting a claim of discrimination and, therefore, might support a retaliation claim. But, here, the plaintiff knew company policy, knew the chain of command, and knew the part-owner had no final decision-making authority. She quit before the company president could weigh in to disavow the threat. At the very least, said the court, a reasonable employee would have followed the company’s grievance process or waited to receive confirmation of whether the threat was official.

Even when someone in a position of authority shoots his or her mouth off, there might be time to walk a threat back. Give it a try.