Conditioning Equal Opportunities on Filing a Grievance is an Adverse Tangible Employment Action

Plaintiff Fonseca sued, pro se, under Title VII and 42 U.S.C. ? 1981 for discrimination based on his Hispanic race and Guatemalan ethnicity. ?Fonseca alleged?? that?? he?? was?? singled?? out?? for?? unfair discipline by issuance of a warning letter, denied equal bereavement leave, denied overtime work that he was entitled to by seniority until he filed a grievance, and his supervisor mocked his accent. Reversing summary judgment for the employer, the Court held that Fonseca?s evidence of comparators was sufficient to satisfy a prima facie case, that issuance of a warning is a tangible employment action, and that ?it is an adverse employment action when an employer knows its employees? are? entitled? to? certain? opportunities, but forces only employees of a certain race to use the grievance procedure to obtain them.?? ?The Court was unimpressed by the employer?s conclusory assertion any disparate treatment was ?inadvertent? ?and ?that? it ?had ?issued ?a ?warning letter? to? Fonseca? because? it? concluded,? without any? investigation,? that? he? damaged? company goods intentionally by dropping them in front of four supervisors.?? Accordingly, the Court found that? the? disputed? facts? required? a? trial.?? ?Sysco Food Services of Arizona, Inc., No. 03-15193 (7/6/04;? B.? Fletcher,? Reinhardt,? Restani? from Court of Internat?l Trade sitting by designation).