What Constitutes an Adverse Employment Action in a Discrimination Claim? The District of Connecticut Weighs In



By Jody Cappello and Tara Sheldon

In Jones v. Walmart Store No. 2585 et al., the United States District Court for the District of Connecticut addressed the burden a plaintiff must meet to establish an adverse employment action under 42 U.S.C. § 1981 and Title VII. In Jones, an Assistant Operations Manager worked at a Walmart store for 18 years until he resigned in 2019.  The Assistant Operations Manager alleged that Walmart discriminated against him based on his race.  In his Complaint, the Assistant Operations Manager, who is African American, alleged that he was subjected to disparate treatment through vague and conclusory allegations of racially charged comments, poor performance reviews, and a minor change in his working hours, as the adverse employment actions he suffered.   

Generally speaking, a plaintiff who has asserted a discrimination claim must allege, with specificity, that the plaintiff suffered a materially adverse change in the terms or conditions of the plaintiff’s employment. Generally, such conduct would include: termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices unique to a particular situation.  Vega v. Hempstead Union Free School District, 801 F.3d 72, 85 (2d. Cir. 2015).  

In Jones, the Court dismissed the discrimination claims and held that the Assistant Operations Manager failed to establish a prima facie case of discrimination.  He did not allege that he suffered an adverse employment action because he did not identify a “termination or a demotion, reduction in pay or position, or a loss of material benefits or responsibilities.”  While the Assistant Operations Manager pointed to conduct that he found objectionable, the conduct did not rise to the level of adverse nor did he provide sufficient specific examples of tangible conduct to support his allegations.   

Jones serves as a reminder that employers facing a discrimination claim should analyze early on whether the employee has been subject to any adverse employment action, and factor that information into any early attempts to resolve the claim. 

For more information, please contact Jody Cappello at, or Tara Sheldon at, or your local FMG attorney