Last week, the Fifth Circuit affirmed summary judgment granted in favor of the employer in a discrimination case. In this case, the employee complained that the employer’s decision to give her the second highest possible, but not the highest possible, rating on a performance review was age, race, sex, sexual orientation, religion, and national origin discrimination. In a per curiam opinion, the Fifth Circuit held that to prove a prima facie case of discrimination, the employee must establish that she suffered an adverse employment action, such as failure to hire, termination, or failure to promote or compensate. In this case, because the plaintiff could not produce any evidence of an adverse employment action, her claim failed.

The plaintiff in this case also brought a hostile work environment claim. Her evidence of a hostile work environment was that a supervisor asked her what was for dessert when the plaintiff provided him lunch and gave her a “real evil look” while saying “good morning.” The Court held that these minor incidents “are so insignificant and infrequent that they cannot possibly” meet the standard for a hostile work environment—that is, the incidents were not “so severe and pervasive” that they destroyed the employee’s opportunity to succeed in the workplace.

In addition to her claims for hostile work environment and age, race, sex, sexual orientation, religion, and national origin discrimination, the plaintiff also brought a retaliation claim that was thrown out.

This case affirms the evidentiary standards for employment cases.  It is also a good illustration of how NOT to litigate in federal court: throwing the kitchen sink in your pleadings is rarely a good idea and often invites a summary disposition.