adverse treatment that in the circumstances might well dissuade a reasonable person from engaging in protected activity. EEOC Enforcement Guidance II B.2. I would also agree with Burlington Northern, the EEOC, and the better reasoned caselaw that the determination of whether a plaintiff has introduced evidence sufficient to establish a material adverse action is fact specific and will, in most cases, generate a jury question. Of course, petty incidents in isolation do not suffice to show a materially adverse impact, but determining what is so petty that it would not deter a reasonable person from utilizing complaint procedures is usually best decided by a diverse jury with a mix of real world experience rather than by the court. Cf. Bell v. Johnson, 308 F.3d 594, 603-05 (6th Cir. 2002) (<HOLDING>); Gallagher v. Delaney, 139 F.3d 338, 342 (2d
holding that retaliatory discharge is a clearly established first amendment violation holding that the court of claims did not have jurisdiction over plaintiffs first amendment claim of improper removal recognizing the tort of retaliatory discharge holding that retaliatory discharge based solely on protected speech by ones spouse is actionable under the first amendment holding unless claimed retaliatory action is truly inconse quential the plaintiffs first amendment claim should go to the jury