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The 8th U.S. Circuit Court of Appeals upheld a jury verdict in favor of a white police sergeant who was told not to apply for a transfer because the supervising officer intended to give the position to a black woman.
David Bonenberger, a long-term employee of the St. Louis Metropolitan Police Department, applied for a transfer to the position of assistant academy director of the city’s police academy. He presented evidence at trial that the position was a “high-profile job” with significant supervisory duties, more contact with command rank officers, more opportunity for promotion and a regular weekly schedule with holidays off.
Bonenberger spoke with his supervising officer about his interest in the position and was told “not to bother applying … because the job was going to a black female.” He presented further evidence at trial that his supervisor told another individual that his ranking officer “wanted a black female in that position.” Shortly thereafter, Bonenberger’s supervising officers recommended a black woman to the then chief of police, who accepted the recommendation without conducting any interviews. Furthermore, in response to a grievance Bonenberger filed with the department, the chief stated that he selected the black female applicant for the position because she had the most time in rank and a clean disciplinary record—both of which were factually incorrect.
Bonenberger sued the department, the chief and several other officers for race discrimination and conspiracy to deprive him of his constitutional right to be free from discrimination. The jury returned a verdict of $620,000—$200,000 in actual damages and $420,000 in punitive damages—against several defendants. The 8th Circuit upheld the award in its entirety.
The 8th Circuit upheld the jury verdict in spite of the fact that the assistant academy director position was not a promotion for Bonenberger. The court reasoned that denial of the transfer was still an adverse employment action because the position would constitute a material change in working conditions due to its supervisory duties and opportunity for advancement.
Bonenberger v. St. Louis Metropolitan Police Dept., 8th Cir., No. 14-3696 (Jan. 19, 2016).
Professional Pointer: Denial of a lateral transfer may be considered an adverse employment action if the position offers a material change in working conditions.
Erin Williams is an attorney in the St. Louis office of Ogletree Deakins, an international labor and employment law firm representing management.
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