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.

Franklin County Court of Appeals Affirms Dismissal of ADA Claim Brought by Former Drug Addict Who was Fired After Volunteering for Strip Search After Theft Accusation.

Last week, the Franklin County Court of Appeals upheld a summary judgment in favor of a fast food employer concerning a claim for disability discrimination brought by a former employee who had been fired for theft. Turner v. Shahed Enterprises., 2011-Ohio-4654.
The plaintiff was a recovered drug addict and convicted drug offender who was hired by the restaurant after she successfully passed a pre-employment drug screen (which was apparently not administered to any applicants who had not identified prior drug convictions). After an employee identified the plaintiff as being seen placing $50 in her pocket shortly after money went missing from the manager's desk, the plaintiff was confronted with the accusation. She volunteered to undress to disprove the accusation and the assistant manager permitted her to do so in the restroom. The money was later found near the plaintiff's work station in an area where all of the other employees also had access. The plaintiff was interviewed and release by police officers, but was still fired the next day. The plaintiff claimed that she was discriminated against on account of her former addiction when she was required to submit to a drug test when other employees were not, when she was required to undress to disprove the theft accusation, and when she was fired for attempted theft.

First, the Court found that requiring the plaintiff to submit to a pre-employment drug test was not a material adverse job action that could support a claim for discrimination. Further, the Court found it permissible for employers to adopt reasonable drug testing procedures to ensure that recovered addicts did not (or had not) relapsed. The ADA specifically provides that it shall not be a violation of the ADA for an employer to adopt or administer reasonable policies or procedures, including but not limited to drug testing, designed to ensure that recovered or recovering individuals are no longer engaging in the illegal use of drugs. 42 U.S.C. §12114(b).

Second, the Court found that the employer lawfully terminated the plaintiff because it believed that she had attempted to steal $50 based on the accusation of a co-worker and the fact the money was eventually found near her work area. While another employee could have placed the money there and it was not found on the plaintiff, that the employer may have been mistaken does not mean that it was not motivated by its belief that she was a thief. The plaintiff could identify no evidence that her status as a recovered addict was the actual reason that she was terminated in light of the theft investigation.

Finally, the Court dismissed her invasion of privacy claim because she had volunteered to undress in front of the assistant manager to prove her innocence even after she was told that it would not be necessary:

Based upon the undisputed evidence, appellant voluntarily undressed in front of an assistant manager, while in a private bathroom, in order to show that she did not have the missing money on her person. Nobody asked her to undress. Rather, appellant was instructed that she did not have to undress, and she insisted in an attempt to exonerate herself. The expectation of privacy appellant now seeks to protect was lost when she undressed on her own volition.

The outcome would probably have been different if she had been threatened with termination if she did not agree to a strip search.

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 Court of Appeals Expands Right to Sue for Discriminatory Constructive Discharge and Demotion.

Last month, a unanimous Franklin County Court of Appeals reversed summary judgment previously entered in favor of an employer in an age discrimination case. Coryell v. Bank One Trust Co., 2008-Ohio-2698 (6/5/08). The Court made several significant holdings. First, the Court held that a plaintiff could show under certain circumstances that s/he had been discharged even if the employee voluntarily chose a severance pay option instead of remaining employed for an indefinite period of time. Second, the Court concluded that a plaintiff could pursue a claim for discriminatory job conditions -- such as a lesser job title and/or decreased responsibilities -- which fell short of a constructive discharge, even without a commiserate decrease in pay. Finally, the Court found sufficient evidence which the jury could use both to disbelieve the Bank’s non-discriminatory explanation for its conduct and to base a finding of discriminatory intent.

The Background

Plaintiff had been the Senior Vice President for the group “which handled the administration and servicing of institutional accounts involving assets subject to trust or other custody requirements. During his tenure, [the plaintiff] was active in direct client relationships and assumed full responsibility for all relationships that were threatening litigation due to problems predating [his] hire. In 2000, despite his experience handling direct client relationships, his supervisor directed him to no longer “maintain direct, selective account responsibilities” and he ”transitioned his accounts to individuals within his organization.” Following a reorganization and change in group leadership, the plaintiff became responsible for managing 28 employees. When discussions began about moving Plaintiff’s team to another group shortly thereafter, Plaintiff supported the move, outlined his suggestions for his role in the new group, and suggested that his management role be eliminated and he transition to a player-coach. However, because Plaintiff had no clients of his own and had been performing only as a manager for a few years, the new group declined to offer him a position after the move. Instead, Plaintiff’s duties were distributed between three other managers (one of whom assumed his former job title, received an increase in compensation and received a 300% increase in his bonus the following year).

Plaintiff continued on the payroll of his former supervisor at the Bank and was rejected for two open positions for which he applied. He was then offered severance and the option of remaining on payroll for an unspecified period of time or risking a six-month reduction in severance payments under the Bank’s new severance plan if he did not act quickly. After suffering a heart attack, Plaintiff accepted the severance option with a one-year salary continuation period and continued to search for another job within and outside the Bank. After finding a position outside the Bank, he filed suit and claimed he had been discriminated against on account of his age.
The common pleas court found factual dispute existed as to whether Plaintiff was qualified for the management position with the new group (which existed after his position was allegedly eliminated) and whether he was replaced by someone substantially younger than himself. Nonetheless, the common pleas court found, as a matter of law, that Plaintiff “was neither directly nor constructively discharged because he chose between meaningful options when he accepted the severance package” and, therefore, Plaintiff was unable to establish that he suffered from an adverse employment action as required to carry his prima facie case.

Existence of Constructive Discharge

In prior Supreme Court cases, the court has held that the prima facie case cannot be satisfied when the plaintiff chose severance instead of other options which would have preserved the plaintiff’s employment. For instance, in Barker v. v. Scovill, Inc., 6 Ohio St.3d 146, 147 (1983). the plaintiff had been “offered both termination with severance pay and layoff options, but was also given the opportunity to transfer to another plant.” She also “confessed that her refusal to accept the transfer was not based on the inherent undesirability of the offered employ; it was predicated on her belief that she " * * * could duplicate * * * [her] salary some place else." As a result, because she “made a conscious, well-informed, uncoerced decision, [s]he should not now be allowed to cry foul” later.

“When a plaintiff chooses termination in lieu of other options, courts will not construe his decision as an actual discharge. Rather, the plaintiff must show that he was constructively discharged, i.e., that his or her choice of termination was involuntary or coerced. . . . . Courts generally apply an objective test to determine whether a plaintiff was constructively discharged, asking "whether the employer's actions made working conditions so intolerable that a reasonable person under the circumstances would have felt compelled to resign."

The Supreme Court has explained that “In applying this test, courts seek to determine whether the cumulative effect of the employer's actions would make a reasonable person believe that termination was imminent. They recognize that there is no sound reason to compel an employee to struggle with the inevitable simply to attain the "discharge" label. No single factor is determinative. Instead, a myriad of factors are considered, including reductions in sales territory, poor performance evaluations, criticism in front of coemployees, inquiries about retirement intentions, and expressions of a preference for employees outside the protected group. Nor does the inquiry change solely because an option to transfer is thrown into the mix, lateral though it may be. A transfer accompanied by measurable compensation at a comparable level does not necessarily preclude a finding of constructive discharge. * * * A sophisticated discriminating employer should not be permitted to circumvent the statute by transferring an older employee to a sham position as a prelude to discharge.”

The Court of Appeals concluded that Plaintiff produced sufficient evidence to create a question for the jury about whether his discharge was imminent. The Bank “stripped him of his title, position, responsibilities, functions, supervisory role, and involvement in day-to-day operations and management, leaving him with no real position. [The new group leader] informed [Plaintiff] that he would not retain him as Managing Director of the National Accounts Group and informed the National Accounts Group that Kozak would immediately assume management responsibilities. [The new group leader] also told [Plaintiff] that he would not provide him another position in the National Accounts Group. Additionally, [the former supervisor] told [Plalintiff] that [the new group leader] was not amenable to [Plaintiff] obtaining any internal position related to institutional investment management. [Plaintiff] applied for two internal positions prior to accepting the severance package, but he was rejected for both positions. [the former supervisor] "highly recommended" that [Plaintiff] accept a severance package because [he] "did not have a position" and because [the supervisor] believed that [Plaintiff] would not be able to secure another position within” the bank. Plailntiff “understood that [his former supervisor] saw his own future with Bank One as "uncertain" and that he did not know how long he would be able to maintain [him] on the payroll. . . . Moreover, the severance package specifically provided that [plaintiff] could continue to seek a new internal position and, thus, simply guaranteed [Plaintiff] a continued salary and benefits while searching for a new position within the organization.”

Even though the Bank did not transfer Plaintiff, it “stripped him of all attributes of his former position, essentially leaving him in a non-existent position.” While Plaintiff remained on the payroll of his former supervisor’s group, Plaintiff “had no title, responsibilities or duties.” In that Plaintiff’s understood the tenuous nature of his former supervisor’s “own continued employment and Natsis's recommendation that [Plaintiff] accept the severance package, [Plaintiff] could reasonably have believed that termination was imminent should he reject the severance package. The record contains ample evidence that [he] desired to continue working for the Trust Group and made attempts to find another position within the organization both before and after accepting the severance package, but, in light of comments” by the leaders of the new and former groups, Plaintiff “could have reasonably believed that he would not be successful in obtaining a new internal position. ‘[T]here is no sound reason to compel an employee to struggle with the inevitable simply to attain the `discharge' label.’ Ultimately, viewing the evidence in the light most favorable to Coryell, we find that genuine issues of material fact remain as to whether Coryell was constructively discharged.”

Age Discrimination Without Discharge from Employment

In addition, the Court acknowledged that an age discrimination claim is not limited to wrongful discharge claims. Even where the employee is unable to show that s/he was constructively discharged, employees may pursue claims for age discrimination whenever they have suffered an adverse employment action in connection with discharge, hire or other terms and conditions of employment. “Whether a specific action constitutes an adverse employment action is determined on a case-by-case basis. . . . Generally, an adverse employment action is defined as a material adverse change in the terms and conditions of employment. . . . . Employment actions that result only in inconvenience or an alteration of job responsibilities are not disruptive enough to constitute adverse employment actions.”

“[A] job transfer resulting in a less distinguished title or significantly diminished responsibilities can constitute an adverse employment action. * * * As well, an employer's decision to transfer an employee to a different department, remove her from her management position, place her under the supervision of the person who took her former management position, assign her less job responsibilities that do not comport with her qualifications and give her negative comments on surprise performance evaluations can be classified as adverse employment actions despite no loss of wages or benefits.” For instance, in Bhat v. Univ. of Cincinnati, Ohio Ct. of Cl. No. 2000-04723, 2003-Ohio-5623, “the Court of Claims determined that the plaintiff demonstrated an adverse employment action where the University of Cincinnati removed her titles of director of cardiac transplantation and director of the heart failure program, despite maintaining her as a full professor with no loss of pay or benefits. The court found that the loss of the "director" titles had a significant effect on the plaintiff's status; "[s]he lost not only the prestige associated with the director's title, but also the level of responsibility and the perception of her professional capabilities associated with those roles." Likewise in Tessmer v. Nationwide Life Ins. Co. (Sept. 30, 1999), Franklin App. No. 98AP-1278, actionable discrimination was found “where the employer abolished the plaintiff's job-share arrangement, stripped the plaintiff from her position and title, reassigned her job duties to younger male employees, and initiated a salary audit that resulted in her position being reclassified to a lower pay band.”

In this case, the Court concluded that Plaintiff could pursue an age discrimination claim even if he had not arguably been discharged. The decision to not “retain [Plaintiff] as Managing Director of the National Accounts Group, to reassign [his] management and supervisory responsibilities” to a significantly younger manager who formerly reported to him, and “to not provide [him with] another position within the National Accounts Group had a materially adverse effect on the terms and conditions of [his] employment. Although [Plaintiff] technically remained employed, with no loss of salary or benefits, after Abunassar removed him from his position as Managing Director, Abunassar's actions left [Plaintiff] with no title, no authority, no responsibilities, and limited prospects of continued employment. At a minimum, [the Bank] contends that [it] eliminated [Plaintiff’s] position. Such an action had an adverse effect on the terms of Coryell's employment.”

Evidence of Pretext

"The factfinder's disbelief of the reasons put forward by the defendant (particularly if disbelief is accompanied by a suspicion of mendacity) may, together with the elements of the prima facie case, suffice to show intentional discrimination. Thus, rejection of the defendant's proffered reasons will permit the trier of fact to infer the ultimate fact of intentional discrimination. . . . . A fact finder's disbelief of the employer's articulated reason does not compel judgment for the plaintiff. Before a plaintiff is entitled to judgment, the fact finder must not only disbelieve the employer, but must also believe the plaintiff's explanation of discrimination. Reeves at 147, citing Hicks at 519. However, "[i]n appropriate circumstances, the trier of fact can reasonably infer from the falsity of the [employer's] explanation that the employer is dissembling to cover up a discriminatory purpose." Reeves at 147. Thus, a plaintiff need not always introduce independent evidence of discrimination to show pretext where there is sufficient evidence to reject the employer's explanation.”

The Court found there was sufficient evidence for the jury to disbelieve the Bank’s explanation for Plaintiff’s treatment and to infer the existence of age discrimination. ”First, only months before Abunassar removed [Plaintiff] from his position, [he] was selected to create and lead the National Accounts Group, based on his relevant experience and knowledge. All evidence suggests that [he] was successfully performing his role of Managing Director, and Abunassar admitted that he had no issues with Coryell's performance.” In his own affidavit, Plaintiff stated that his former supervisor stated that he “should manage the [National Accounts Group under Abunassar], as I was the most qualified." Plaintiff’s former supervisor ”testified that [Plaintiff] had been successful at Bank One, demonstrated technical knowledge, and was liked and supported by his subordinates. Second, while Abunassar desired the National Accounts Group manager to maintain a book of business, there is no dispute that Coryell's experience qualified him to resume direct client relationships. Until shortly before embarking on the creation of the National Accounts Group, Coryell successfully maintained a book of business, which he gave up at the direction of his former supervisor who, in direct contrast to Abunassar's business model, prohibited managers from maintaining books of business. Moreover, Coryell was willing and qualified to resume direct client relationships and suggested to Abunassar that he resume direct relationships and serve as a "player-coach," the very term Abunassar uses to describe his vision of the Managing Director role. The record contains evidence that certain accounts had not yet been transitioned to National Accounts Group employees, and the National Accounts Group organizational chart shows open Institutional Client Advisor positions, suggesting the availability of accounts for which Coryell could have assumed direct responsibility. Abunassar also admitted that, if he had wanted to assign Coryell accounts, he could have done so through the open investment relationship manager position for which Coryell interviewed, but was rejected. Such evidence discredits Abunassar's refusal to assign Coryell a book of business based on his reluctance to transition clients where unnecessary. Viewing the evidence in the light most favorable to Coryell, we find that a fact finder could reasonably disbelieve appellees' purported non-discriminatory reason for their actions relating to Coryell's position and employment.”

“Because the fact finder's disbelief of [the Bank’s] proffered non-discriminatory reason, coupled with evidence satisfying Coryell's prima facie case, would permit (although not compel) the fact finder to infer the ultimate fact of intentional discrimination, we find that [the Bank is] not entitled to judgment as a matter of law on Coryell's age discrimination claim. We do not suggest that Coryell will or should ultimately prevail on his age discrimination claim, but conclude only that the evidence, viewed in the light most favorable to Coryell, creates genuine issues of material fact, which preclude summary judgment. Accordingly, we find that the trial court erred in granting summary judgment in favor of [the Bank] , and we sustain Coryell's first assignment of error.

Insomniacs can read the decision in full at 2698 http://www.sconet.state.oh.us/rod/docs/pdf/10/2008/2008-ohio-2698.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.