Transfer May Be an Adverse Employment Action

​A transfer may be a challengeable adverse employment action for purposes of discrimination claims if the new position is less prestigious or provides less room for advancement, according to a federal district court.

The plaintiff, a black woman, served as the Jackson, Miss., police department deputy chief of patrol operations until 2015 when the defendants city of Jackson and the police chief removed her from that position and placed her in the lieutenant of administration position. In addition to the less-prestigious title, the move also resulted in a 28 percent salary decrease and the elimination of supervisory duties. The reason for the reassignment became a point of contention.

The defendants contended that one of the plaintiff's subordinates complained that she had pressured him to place certain officers on the list to work special events. After the plaintiff denied this, an investigation was conducted that included polygraph examinations of both the plaintiff and her accuser. The police chief decided to reassign the plaintiff after the examination suggested she had not told the truth.

The plaintiff filed a discrimination charge with the Equal Employment Opportunity Commission (EEOC) asserting that the reassignment was a demotion motived by her race and gender. She also asserted that the demotion was in retaliation for her having made internal reports of alleged misconduct by male police officers.

[SHRM members-only toolkit: Managing Equal Employment Opportunity]

After receiving a notice of right to sue from the EEOC, the plaintiff filed a federal lawsuit. The lawsuit stated claims against the defendants for retaliation, race discrimination and sex discrimination, each based on Title VII of the Civil Rights Act of 1964, 42 U.S.C. Section 1983, and the Equal Protection Clause. The defendants disputed the allegations and moved for summary judgment on all claims.

The court resolved much of the motion on technicalities. The court dismissed several of the plaintiff's claims because she abandoned them (e.g., her Section 1983 claim against the city as defendant) or because they were not allowed (specifically, her Title VII claims against an individual defendant and her retaliation claims based on the Equal Protection Clause).

But the court denied the defendants' summary judgment motion as to those claims that the defendants had not addressed in their moving papers. Refusing to consider arguments made for the first time in their reply brief, the court permitted a number of the plaintiff's claims to proceed to trial. These claims included her retaliation claims not based on the Equal Protection Clause, her race-discrimination claims and her Section 1983 claim against the police chief.

The portion of the summary judgment motion not resolved on technical grounds related to the plaintiff's sex-discrimination claims. The court applied the three-part burden-shifting framework to its analysis of the plaintiff's claim and the defendants' summary judgment motion.

Specifically, it stated that the plaintiff first had to establish an initial showing that she:

• Is a member of a protected class.
• Was qualified for the position at issue.
• Was the subject of an adverse employment action.
• Was replaced by someone outside the protected class.
• Was treated less favorably than similarly situated employees under nearly identical circumstances.

The defendants argued that reassignment could not be considered an adverse employment action. The court disagreed, stating that adverse employment actions "generally consist of ultimate employment decisions such as hiring, firing, demoting and promoting" and that "transfer or reassignment can be the equivalent of a demotion, if the new position is less prestigious or provides less room for advancement."

When an initial case of discrimination is established, the burden shifts to the defending party to present evidence of a legitimate, nondiscriminatory reason for taking adverse action. The claimant may then contradict that reason by showing that it is a pretext or that, even if true, it does not eliminate unlawful motive from being another motivating factor.

In this case, the defendants argued that the plaintiff's demotion was justified by her "polygraph examination, which suggested that she was not being truthful" and because the police chief had the discretion to reassign the plaintiff at any time.

The plaintiff responded by presenting evidence that male officers accused of misconduct were not given polygraph examinations and were not investigated or demoted. The court concluded that the plaintiff had presented enough evidence to allow this claim to proceed to a full trial. For that reason, it denied summary judgment on the sex-discrimination claims.

Wallace v. City of Jackson, N.D. Miss., No. 3:17-CV-270 (Nov. 29, 2018).

Professional Pointer: When an employer has a legitimate, nondiscriminatory reason for taking adverse action, it should evaluate past practice to make sure that other employees in similar situations have not been treated more favorably.

Bullard Law is the Worklaw® Network member firm in Portland, Ore.