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Court applies liberal definition of adverse employment action.

Hillig v. Rumsfeld, 381 F.3d 1028 (10th Cir. August 27, 2004) - This is a Title VII race discrimination action alleging retaliation. Terrie Hillig is an African-American female who works for the Defense Finance Accounting Service (DFAS). In 1995 and 1996 Hillig filed EEO complaints against her supervisors. These complaints were settled in December 1996. In 1998, Hillig applied for a position with the Department of Justice (DOJ). She was not selected and an EEO investigation revealed that DOJ was provided two negative evaluations by her DFAS supervisors. Hillig then brought this lawsuit. At trial, the jury found that the DFAS supervisors had retaliated against her for the prior EEO complaints. However, the jury believed the DOJ representative who testified that the reason it did not select Hillig was unrelated to the negative evaluations. Still, the jury awarded $25,000.00 in damages. The district court then granted DFAS's motion for judgment as a matter of law because Hillig failed to show that she suffered any actual tangible injury. On appeal, the Tenth Circuit reverses in a split opinion. The Court rejects the notion that a tangible employment action (as described in Ellerth / Faragher) and an adverse employment action are the same thing. In the Tenth Circuit, an adverse employment action is not limited to those situations involving actual monetary loss. It extends to acts that carry a significant risk of humiliation, damage to reputation, and a concomitant harm to future employment prospects. Therefore, the majority finds that Hillig presented sufficient evidence of harm to future employment prospects should she ever apply again for a position with the DOJ. The majority notes that the Ninth and D.C. Circuits follow a similar approach, and the Third Circuit has a case that is also supportive. The majority also notes that there are decisions from the Second and Eleventh Circuits that are not supportive. Circuit Judge O'Brien dissents. He does not believe that speculative harm can qualify as an adverse employment action. Click here to see actual case.