by Michael Fox
Discussing the recent Supreme Court decision in Burlington Northern v. White, the 1st Circuit noted that it did not make a difference in the case before it, Carmona-Rivera v. Commonwealth of Puerto Rico(1st Cir. 9/12/06). The case involved a school teacher with a disability who complained not that her disability had not been accommodated (she did get her own private bathroom), but that it had taken too long. Her argument that the delay itself was retaliation fell on deaf ears, the court finding it nothing more the type of action "inherent in the workings of an educational bureaucracy."
The court also noted the qualifying factors in White:
The alleged retaliatory action must be material, producing a significant, not trivial, harm. Id. Trivial actions such as "petty slights, minor annoyances, and simple lack of good manners will not [normally] create such deterrence." Id. "Context matters," and "the standard is tied to the challenged retaliatory act, not the underlying conduct that forms the basis of the Title VII complaint." Id. at *11. While White slowly works its way into the consciousness of the courts, so far, nothing dramatic .... yet.