Supreme Court Rejects Requirement of Materially Adverse or Significant Changes in Terms and Conditions of Employment to Prove Discriminatory Lateral Transfers

This morning, in a long-awaited decision without any dissents, the Supreme Court reversed the summary judgment dismissal of a sex discrimination lawsuit on the grounds that the plaintiff is not required to prove that an involuntary lateral transfer significantly affected the terms and conditions of her employment.   Muldrow v. City of St. Louis, MO, No. 22-193 (4/17/24).  In particular, the plaintiff alleged that, even though her pay and title remained the same after the transfer, she was denied the use of an unmarked vehicle to use after her shift, was required to sometimes work weekends and no longer worked with higher ranking officers.   “Although an employee must show some harm from a forced transfer to prevail in a Title VII suit, she need not show that the injury satisfies a significance test.”  Nonetheless, the Court observed that the significance of the changed working conditions may be considered in assessing whether the employer intentionally discriminated.  “[A] court may consider whether a less harmful act is, in a given context, less suggestive of intentional discrimination.”

According to the Court’s opinion, when a new commander took over, the plaintiff was involuntarily transferred from a plainclothes officer position in the Intelligence Division (where she had worked for almost 10 years) to a uniformed officer position in another department supervising patrol officers.  The new commander allegedly called her “Mrs.” instead of “Sergeant” and indicated that a male officer was better suited for the Division’s dangerous work.   Her pay and rank remained the same following the transfer.  However, she “no longer worked with high-ranking officials on the departmental priorities lodged in the Intelligence Division” and “also lost access to an unmarked take-home vehicle and had a less regular schedule involving weekend shifts.”   She lost a “prestigious” role for an “administrative” role.  She alleged that she was transferred because of her sex in violation of Title VII.  However, the trial and appellate courts granted judgment to the city employer on the grounds that she had not suffered any materially significant adverse affects from the transfer and she only suffered minor changes in her working conditions.   The  Supreme Court reversed.

The plaintiff’s involuntary “transfer  . . .  implicated “terms” and “conditions” of [her] employment, changing nothing less than the what, where, and when of her police work.”

Title VII makes it unlawful for an employer “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” §2000e–2(a)(1).

This “language requires [the plaintiff] to show that the transfer brought about some ‘disadvantageous’ change in an employment term or condition.  . . . . The words ‘discriminate against,’ we have explained, refer to ‘differences in treatment that injure’ employees.”  Title VII “targets practices that “treat[] a person worse” because of sex or other protected trait.”  The Court has clarified in the past that the “terms [or] conditions” statutory language  “is not used ‘in the narrow contractual sense’; it covers more than the ‘economic or tangible.’”  Nonetheless, it limits that kinds of harm that is actionable.  “To make out a Title VII discrimination claim, a transferee must show some harm respecting an identifiable term or condition of employment.”

What the transferee does not have to show, according to the relevant text, is that the harm incurred was “significant.”  . . . . Or serious, or substantial, or any similar adjective suggesting that the disadvantage to the employee must exceed a heightened bar . . . “Discriminate against” means treat worse, here based on sex.  . . . But neither that phrase nor any other says anything about how much worse. There is nothing in the provision to distinguish, as the courts below did, between transfers causing significant disadvantages and transfers causing not-so-significant ones. And there is nothing to otherwise establish an elevated threshold of harm. To demand “significance” is to add words—and significant words, as it were—to the statute Congress enacted. It is to impose a new requirement on a Title VII claimant, so that the law as applied demands something more of her than the law as written. And that difference can make a real difference for complaining transferees. Many forced transfers leave workers worse off respecting employment terms or conditions. (After all, a transfer is not usually forced when it leaves the employee better off.) But now add another question— whether the harm is significant. As appellate decisions reveal, the answers can lie in the eye of the beholder—and can disregard varied kinds of disadvantage.

The Court rejected the employer’s policy argument that removing the significance factor will open the litigation floodgates and discovery issues:

In the City’s view, a significant-injury requirement is needed to prevent transferred employees from “swamp[ing] courts and employers” with insubstantial lawsuits requiring “burdensome discovery and trials.”  . . . . As we have explained, the anti-discrimination provision at issue requires that the employee show some injury.  . . . It requires that the injury asserted concern the terms or conditions of her employment. . . . Perhaps most notably, it requires that the employer have acted for discriminatory reasons—“because of ” sex or race or other protected trait. §2000e–2(a)(1). And in addressing that issue, a court may consider whether a less harmful act is, in a given context, less suggestive of intentional discrimination. So courts retain multiple ways to dispose of meritless Title VII claims challenging transfer decisions. But even supposing the City’s worst predictions come true, that would be the result of the statute Congress drafted.  As we noted in another Title VII decision, we will not “add words to the law” to achieve what some employers might think “a desirable result.” . . . Had Congress wanted to limit liability for job transfers to those causing a significant disadvantage, it could have done so.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Sixth Circuit: Be Careful What You Ask For -- Granting Employee’s Request to Transfer Can Be an Adverse Employment Action As Much as Denying the Same Request

Yesterday, a divided Sixth Circuit Court of Appeals reversed summary judgment for an employer in an equal protection, Title VII and ADEA lawsuit on the grounds that the employer’s granting of a requested transfer to the plaintiff could constitute an adverse employment action where the working conditions of the new position presented “some level of objective intolerability.”  Deleon v. Kalamazoo County Road Comm’n, No.12-2377 (6^th Cir. 1-14-14).  In that case, the plaintiff had applied for a lateral job transfer to Equipment and Facilities Superintendent, but requested a $10K compensation increase because the working conditions were more unpleasant than his current job.  In particular, the garage was filled with diesel fumes and soot, etc. which eventually lead to headaches and bronchitis.  He was initially denied the transfer because of inferior computer skills, but was then granted the transfer (with no raise in pay) after the resignation and declination of the first two individuals hired.  He was then evaluated poorly on his computer and a few other skills and took an eight-month medical leave of absence for stress, during which time he was terminated.  The majority found that the plaintiff had presented sufficient facts to show that he suffered an adverse employment action when he was “involuntarily” transferred into the Superintendent position for which he had previously applied because its working conditions could be described as “more arduous and dirtier.”  The Court concluded that "the key focus of the inquiry should not be whether the lateral transfer was requested or not requested, or whether the aggrieved plaintiff must ex tempore voice dissatisfaction, but whether the 'conditions of the transfer' would have been 'objectively intolerable to a reasonable person.'" 

Importantly, all three causes of action [brought by the plaintiff] require that the aggrieved plaintiff show that he suffered an adverse employment action. An adverse employment action has been defined as a “materially adverse change in the terms and conditions of a plaintiff’s employment.” White v. Burlington N. & Santa Fe Ry. Co., 364 F.3d 789, 795 (6th Cir. 2004) (en banc) (citation omitted). A “mere inconvenience or an alteration of job responsibilities” is not enough to constitute an adverse employment action. Id. at 797 (citing Kocsis v. Multi-Care Mgmt. Inc., 97 F.3d 876, 885-87). The Commission, and indeed the district court, relied on the proposition that “[r]eassignments without changes in salary, benefits, title, or work hours usually do not constitute adverse employment actions.” Kocsis, 97 F.3d at 885. Nevertheless, a reassignment without salary or work hour changes, however, may be an adverse employment action if it constitutes a demotion evidenced by a “less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices that might be unique to a particular situation.”

In White v. Burlington Northern & Santa Fe Railway Co., 548 U.S. 53, 71 (2006), the Supreme Court had held that “[w]hether a particular reassignment is materially adverse depends upon the circumstances of the particular case,” and “should be judged from the perspective of a reasonable person in the plaintiff’s position, considering ‘all the circumstances.’”  While the Sixth Circuit has previously recognized that a lateral transfer could constitute an adverse employment action when the working conditions became so objectively intolerable that it constituted a constructive discharge, the Court “has not foreclosed the possibility that a transfer not rising to the level of a constructive discharge might nonetheless constitute a tangible employment action.”  In particular, “an employee’s transfer may constitute a materially adverse employment action, even in the absence of a demotion or pay decrease, so long as the particular circumstances present give rise to some level of objective intolerability.”

 

We must also address the issue that Deleon applied for the position before being “involuntarily” transferred. Semantically, the argument follows that an action cannot be truly “adverse” if coveted by its actor. No case within this circuit has ruled on this precise issue. Nevertheless, our sister circuits have held that the request of a transfer, and accession to the new position, does not categorically bar a finding of an adverse employment action. . . . . . Accordingly, we conclude that under certain circumstances, a voluntary or requested transfer may still give rise to an adverse employment action.

The Court’s majority was partially influenced by the fact that the plaintiff did not receive his requested salary increase as “hazard pay.”  They also found irrelevant the fact that he did not initially object to the transfer and never withdrew his request to transfer into the position. “We are leery of a holding that would require that an involuntarily transferred employee, alleging a discriminatory work environment, must demand a transfer from the very superiors engaging in the discrimination.”

We emphasize that the key focus of the inquiry should not be whether the lateral transfer was requested or not requested, or whether the aggrieved plaintiff must ex tempore voice dissatisfaction, but whether the “conditions of the transfer” would have been “objectively intolerable to a reasonable person.”  . . .  Indeed, an employee’s opinion of the transfer, whether positive or negative, has no dispositive bearing on an employment actions classification as “adverse.”

The dissent noted simply that “[w]hen an employee voluntarily applies for, and obtains, a job transfer, his employer has not subjected him to an adverse employment action.” 

Yes, his application included a request for a higher salary and an additional employee. But he kept his application active and interviewed for the position after his supervisors told him that the job would not come with a raise or another employee.

             . . .

A retaliation claim requires the employer to do something bad to the employee—something that might “have dissuaded a reasonable worker from making or supporting a charge of discrimination.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006). That concept cannot be bent and stretched to cover an employer’s decision to grant an employee’s request for a transfer. No reasonable employee in Deleon’s position would have interpreted the transfer as an act designed to prevent him from exercising his rights against anti-discrimination.

             . . .

Whatever the correct interpretation of the employment retaliation laws may be, they surely stop at this line: imposing liability on employers whether they grant or deny an employee’s request for a transfer. All would agree that today’s case is the harder one—where the employee got what he wanted—and yet, according to the majority, he still has a cognizable claim. It follows under the majority’s analysis that, when the employer denies what the employee wants, he also has a cognizable claim. . . . An interpretation of the retaliation laws that subjects employers to  liability coming and going—whether after granting employee requests or denying them—will do more to breed confusion about the law than to advance the goals of a fair and respectful workplace. Even after plumbing the depths of logic, experience, case law and common sense, I must return to this surface point: When an employee voluntarily applies for, and obtains, a job transfer, his employer has not subjected him to an adverse employment action.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Divided Sixth Circuit Reverses Summary Judgment for a Central Ohio Bank in FMLA Interference and Retaliation Case

The Sixth Circuit addressed two FMLA cases this week.  In one case, a unanimous Court affirmed the employer’s summary judgment over the employee’s claim that the employer interfered with his FMLA leave when it fired him for failing to call off every day in accordance with the employer’s policy even though the employer admittedly knew he was medically unable to work and was scheduled for surgery two days later.   White v. Dana Light Axel Mfg, Inc., No. 12-5835 (6^th Cir. 8-7-13).  In the other, a divided Court reversed the employer’s summary judgment where the Central Ohio employee alleged that she had been demoted in retaliation for exercising her FMLA rights because internal emails raised questions about the employer’s business justification for transferring her position and whether it was done to compel her to resign.  Crawford v. JP Morgan Chase& Co., No. 12-3698 (6^th Cir. 8-6-13).

In Crawford, the plaintiff suffered from PTSD after being held hostage at gun-point by a co-worker while working a second job at Safe Auto in 2005.  She was promoted by the defendant employer shortly thereafter and reported to a supervisor in Michigan and one in Phoenix.  While she took FMLA leave, the decision was made to transfer her position to Phoenix and she was allegedly demoted a month after her return to work to a less important position (but at the same pay, hours and bonus potential). In a series of prior emails among management, questions were raised about whether a business justification existed for the change in her position.  Managers were told that they could not eliminate her position and give her severance because the team had actually expanded.  Upper management requested to review her personnel files, and suggested making her part-time or re-deploying her.   Upper management also suggested putting her in a new role and then treating her as having resigned (without severance pay) if she resisted.  She filed suit instead and alleged that she was re-instated to a non-equivalent position upon returning from FMLA leave and was retaliated against for exercising FMLA leave.

The Court’s majority concluded that whether her new job was an “equivalent position” to which she was statutorily entitled upon returning from FMLA leave was a question for the jury.  While the employer contended that it was an “equivalent position” and that the transfer did not take place until a month after she completed her FMLA leave, the plaintiff raised questions about whether her reporting to a former peer and a reduction in her level of responsibility and career advancement potential made it less desirable.  “Even if both positions carried equal pay and benefits, if the Quality Analyst II position did not require a similar level of training and education, then it was not equivalent in terms of status and thus the positions would not be equivalent under the FMLA.”

The Court also found that the plaintiff raised a question for a jury about whether the restructuring of her position was done in retaliation for her exercising FMLA leave.  The Court noted that Supreme Court’s retaliation from Burlington Northern and Santa Fe Railway v. White applied to FMLA retaliation claims: “[A] plaintiff must show that a reasonable employee would have found the challenged action materially adverse, which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” 

Here, Crawford has presented evidence that, upon returning from FMLA leave, she was transferred to a lesser position from Project Manager I to Quality Analyst II. Crawford argues that her new position constituted a demotion because the position included more clerical duties, did not require the same level of expertise, and she was required to report to a former peer. There is evidence in the record that suggests that Chase wanted to eliminate Crawford’s position, but there was no business reason to justify doing so. Even if we were to assume, arguendo, that Crawford was transferred to a seemingly lateral position, the change in job responsibilities support an inference of an adverse employment action. See Fisher v. Wellington Exempted Village Schs. Bd. of Educ., 223 F. Supp. 2d 833, 843 (N.D. Ohio 2001) (explaining that a lateral transfer is actionable as an adverse employment action if the conditions of the transfer would have been objectively intolerable to a reasonable person and changes in job responsibilities should be considered in this analysis). An email exchange among high-level supervisors demonstrates that there was a change in Crawford’s responsibilities in the new role and that these changes might cause Crawford to decline the new position and resign. As such, the change in positions shortly after Crawford’s return from FMLA leave, under these circumstances, could deter a reasonable employee in Crawford’s position from exercising her FMLA rights. We find that there is a genuine issue as to whether Crawford suffered an adverse employment action when Chase transferred her to a lesser position after she returned from FMLA leave.

Moreover, the fact that the transfer/demotion took place only a month after her return to work also raised  a question about the temporal proximity. “Such temporal proximity is ‘unduly suggestive’ and satisfies the causation element of plaintiff’s prima facie case at the summary judgment stage.” 

Regardless of its prior discussion, the Court found that the bank identified a business justification: the desire to transfer plaintiff’s job without adding another employee.   However, it also found that the plaintiff was able to show that the bank’s explanation might be pretextual:  

Here, Crawford raises an issue of fact regarding whether Chase’s proffered explanation was pretextual by presenting emails from high-level supervisors in her former department. Crawford relies on emails from Nicks, stating that Chase could not justify eliminating Crawford’s position, but the position could be moved to the Phoenix office so long as the transfer did not require hiring a new person. (Page ID 359.) These emails also suggest that the transfer of Crawford’s position involved at least some ulterior motive to push Crawford out of the company by offering her a lesser position with the hope that she would resign. (Page ID 359-62.) Therefore, Crawford has put forth evidence to show that Chase’s legitimate non-retaliatory reason for eliminating her position was potentially pretextual.

The dissenting judge objected to the weight given to the plaintiff’s view that she had been demoted instead of laterally transferred.  He found her objections to the changes in her job were de minimis. Moreover, the dissent found that the transfer did not constitute unlawful interference if the Bank could show that it would have taken the action even in the absence of the plaintiff’s FMLA leave.  The dissent believed that the bank had carried its burden of justifying the transfer and showing it was unrelated to her FMLA leave.   Similarly, the dissent found that the Bank had likewise disproved any unlawful retaliation.  Her former peer had been promoted and was supervising several employees, not just her.  Moreover,

there was no evidence that this transfer was designed to silence Plaintiff or scare her away from future FMLA requests. The record shows that she was always given leave under the FMLA when she requested it. After her most recent leave she was given raises and eventually promoted, and she was later given permission to work from home. This also eliminates Plaintiff’s  ability to show a causal connection between her FMLA leave and any adverse consequences. There is no basis upon which this Court can infer that her transfer had anything to do with her FMLA leave, as she had taken leaves repeatedly before and not faced any adverse consequences. To the extent that she can show any adverse consequences, her evidence proves at best that Van Dam bore her some animus, but that animus seems to have been based on personal dislike, rather than retaliation cognizable under the FMLA.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Sixth Circuit Rejects ADA Claim Based on Stress from Poor Work Performance and Request for New Supervisors

Last Thursday, the Sixth Circuit affirmed the dismissal of ADA and retaliation claims brought by an employee who was refused a transfer to different supervisors based on workplace stress.   Cardenas-Meade v. Pfizer, Inc., No. 12-5043 (6^th Cir. 1-3-13).   The Court found there was insufficient evidence that the plaintiff’s mental stress was “anything more than a short-term, temporary result of the anxiety and depression triggered by” failing a mandated performance evaluation.  The Court also noted that a request for reassignment to a new supervisor is a disfavored ADA accommodation and that the plaintiff had failed to show that her reassignment request was administratively reasonable in light of her probationary status and failed performance examination.  Finally, the Court rejected her assorted claims of retaliation on the grounds that the decisionmakers either lacked knowledge of her protected conduct or that the employer possessed a legitimate business reason for its actions.

According to the Court’s opinion, the plaintiff had been hired as a sales representative in 2006.  After 18 months of training, she was required to pass a three-day evaluation session known as Phase VI.  Employees who fail the Phase VI examination are placed on probation and are terminated if they do not pass the test within six months.  After failing the written examination portion in Fall 2007, the plaintiff explained to her supervisors that she was having marital and family care issues.  She claimed that her supervisors then began treating her discriminatorily and abusively. She never returned to work after failing the examination and instead began medical leave based on “emotional trauma” brought on by the Phase VI examination.  The physician to whom the employer referred the plaintiff for treatment diagnosed her with severe anxiety and depression and informed the company that she could not return to work for her former supervisors.  An internal investigation by HR found no basis for the plaintiff’s allegations that she was discriminated against and harassed during Phase VI.

The Company refused to transfer the plaintiff to different supervisors before she passed Phase VI, but extended her medical leave until April 30, 2008 (when her STD compensation ran out).  The plaintiff then obtained a job with a competitor on May 12 -- in violation of defendant’s policy – on the grounds that she felt that she had been terminated.  She then filed a Charge of Discrimination with the EEOC two days later.  After learning a month later that plaintiff had been working for a competitor in violation of company policy, the defendant employer terminated her employment in June 2008.  When the plaintiff filed a Charge alleging retaliation, the defendant employer explained that it had been unaware of her first Charge at the time it decided to terminate her employment.  The plaintiff filed her lawsuit in June 2009 alleging violations of the FMLA, ADA and Title VII gender discrimination provisions.   The district court granted the employer’s motion for summary judgment.

The Sixth Circuit affirmed dismissal of the disability discrimination claims on the basis that the plaintiff had failed to prove that her mental distress was “substantially limiting” instead of a short-term impairment.  The plaintiff was “unable to direct this court to evidence that the limits on her non-work activities were anything more than a short-term, temporary result of the anxiety and depression triggered by actions leading up to and during her failed Phase VI examination.”  There was no evidence that her marital and child care issues were related to her mental distress.  Further, there was evidence that her condition had improved in February 2008 and virtually disappeared by June 2008.  She never “pointed to any evidence in the record that Dr. Booher or another treating physician considered her anxiety and depression to be a permanent condition or one with a “long-term impact.”

The long-term impact of a condition is not necessarily dispositive of whether it may qualify as a disability under the ADA. In this case, however, the lack of evidence supporting long-term impact – considered along with the other relevant factors and the entire record – do not provide sufficient evidence such that a reasonable jury could find [the plaintiff’s] “disabled” under the terms of the pre-amendment ADA.

The Court rejected the plaintiff’s regarded-as-disabled claim.  Her physician had indicated in April 2008 that she was capable of returning to work and performing all of her job duties, but not for her former supervisors. “[T]his is not evidence that [the employer] viewed [the plaintiff] as substantially limited. Moreover, [the employer’s] neutral rule against pre- Phase VI transfers weakens [her] claim that [the employer] treated her differently on account of a perceived disability.”

The Court also rejected her claims that the employer failed to offer her reasonable accommodations.  

[R]equests for re-assignment to a new supervisor are disfavored.  . . .  While it is appropriate to consider the reasonableness of such a request on a “case-by-case” basis, there is a “presumption . . . that a request to change supervisors is unreasonable, and the burden of overcoming that presumption (i.e., of demonstrating that, within the particular context of plaintiff’s workplace, the request was reasonable) therefore lies with the plaintiff.  . . . Here, given that [the plaintiff] was in a probationary initial training period as an employee and had already failed the required final examination, it is not clear that the benefits of such a transfer would have outweighed the associated administrative costs.

The Court rejected her assorted claims of retaliation.  For instance, the employer’s medical director was unaware of her internal complaints and had merely relied on her own physician’s assessments of her mental state when he refused to permit her to return to work.  The employer’s neutral policy prohibiting supervisory transfers before passing Phase VI was a legitimate reason to deny her requests.  Similarly, terminating her employment for violating a policy against working for competitor was also a legitimate and non-retaliatory reason.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Ohio Appeals Court: Employee’s Speculation Does Not Convert a Lateral Transfer Into a Constructive Discharge.

Late last month, Montgomery County Court of Appeals affirmed the dismissal of wrongful, constructive discharge claim against an employer which arose out of the plaintiff’s transfer to a similar job at a location 15 miles from his former job. Lookabaugh v. Spears, 2008-Ohio-1610. The court also dismissed defamation claims against the employer’s customer whose complaints about the plaintiff motivated his transfer because the customer had a qualified privilege to complain. Although the plaintiff speculated that the new job would not be reliable and prevented him from regularly checking on his ill wife during lunch, the court noted that a "[p]art of an employee's obligation to be reasonable is an obligation not to assume the worst, and not to jump to conclusions." Farris v. Port Clinton Sch. Dist., 2006-Ohio-1864, ¶64. Moreover, a lateral ‘transfer without a change in benefits, salary, title, or work hours is usually not an adverse employment action. Policastro v. Northwest Airlines, Inc.,” 297 F.3d 535, 539 (6th Cir 2002).

The plaintiff accepted the job in part in order to obtain health insurance because his wife had been ill. Although the job regularly required him to travel, he could often check on his wife during his lunch break. After a customer (who had long-standing conflicts with the plaintiff) complained and threatened to move his business if the plaintiff continued to work there, the employer transferred the plaintiff to the same job 15 miles away. The plaintiff rejected the transfer. After filing suit, the plaintiff claimed that the transfer was an adverse job action which forced him to resign because (1) there had not been a job previously available at the new location (i.e., it was a “ghost job” which had been created for him as a pretext), (2) the offered job was not comparable, and (3) his was no longer the decision-maker regarding his employment.

As noted by the court, an adverse employment action generally “occurs when it results in a material change in wage or salary, a less distinguished title, a material loss in benefits, significantly diminished material responsibilities, or other indices that might be unique to the particular situation. Hollins v. Atlantic Co., 188 F.3d 652, 662 (6th Cir. 1999). A significant increase in the employee's commute may be a factor in whether a transfer is an adverse employment action. Keeton, 429 F.3d at 264-65 . . . . In determining whether the transfer is an adverse employment action, courts generally employ an objective test. See Mauzy, 75 Ohio St.3d at 588-89; Policastro, 297 F.3d at 539, citing Kocsis v. Multi-Care Mgmt., Inc., 97 F.3d 876, 886 (6th Cir. 1996). An employee's subjective belief that one position is more desirable is irrelevant to whether the transfer is an adverse employment action. E.g., Policastro, 297 F.3d at 539; Tessmer v. Nationwide Life Ins. Co.,” Franklin App. No. 98AP-1278 (9/30/99).
The court rejected the plaintiff’s argument that the transferred job was not comparable. Although the plaintiff complained about the employee turnover rate at the new location, the seasonal downturns in working hours, and the new manager’s temper, the plaintiff “assumed that he would be fired from” the new location. The plaintiff “cannot base a constructive discharge claim based on an unsubstantiated assumption that his worst fears would come true. ‘Part of an employee's obligation to be reasonable is an obligation not to assume the worst, and not to jump to conclusions.’" Farris v. Port Clinton Sch. Dist., 2006-Ohio-1864, ¶64.

The fact that the plaintiff” would no longer be able to visit his wife during lunchtime does not render the position at [the new location] incomparable to the [former] position. Although [the plaintiff] benefitted from living close to the [former] facility by being able to check on his wife at lunchtime, that benefit was a subjective reason for [the plaintiff] preferring the [former] position. However, being able to go home at lunchtime was not a benefit of employment offered by Landmark to its employees. [The plaintiff] was not promised that he could go home at lunchtime, and he indicated that he did not go home every day because he was not always in the area during lunchtime. His position with Landmark . . . . . required him to travel to customers' properties throughout the day. Although [the plaintiff] would have preferred to work at the facility within a mile of his home, the addition of a ten to fifteen mile commute did not constitute a material change in the terms of his employment.”

Because there was no evidence that the plaintiff had been constructively discharged, he also could not prevail on his claim that his "discharge" had violated public policy.

Insomniacs can read the full decision at http://www.sconet.state.oh.us/rod/docs/pdf/2/2008/2008-ohio-1610.pdf.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.