Workplace Issues: Supervisor’s transfer is adverse action, survives summary judgment

Lindy Korn

A rational jury could find that a supervisor’s transfer was an adverse employment action taken in retaliation for his support of another employee in a racial incident, the U.S. Court of Appeals for the District of Columbia Circuit ruled last month, Geleta v. Gray, D.C. Cir., no. 10-7026 (June 17).

The appeals court reversed a ruling in favor of the District of Columbia government in the case brought under Title VII, rejecting the city’s contention that the project director, Nicholas Geleta, was transferred to a new position that was comparable to his previous position. Geleta was transferred in 2004 after he corroborated a black employee’s account of a dispute with a white employee.

The reversal relied upon the U.S. Supreme Court decision Burlington N. & Santa Fe Ry. Co. v. White (548 U.S. 53, 2006), holding that “[a]n employment action is materially adverse where it might well have dissuaded a reasonable worker from making or supporting a charge of discrimination.”

Thus, the appeals court found a material dispute to exist on the ultimate issue of retaliation, which must be presented to a jury. Was the lateral transfer a materially adverse action? The court cites Stewart v. Ashcroft, 352 F3d 422, DC Cir. (2003):

“A lateral transfer — that is, a transfer involving no diminution in pay and benefits — may qualify as a materially adverse employment action if it results in materially adverse consequences affecting the terms, conditions, or privileges of the plaintiff’s employment.”

The question is whether a rational juror would be dissuaded from making a complaint of discrimination if they knew a lateral transfer could mean:

• Supervisory authority removed;
• The job transferred to was narrower in duties;
• Function was less dynamic, more of a review nature;
• The transfer itself was caused because of corroborating discrimination of a higher manager, thereby making the person being transferred labeled as a whistleblower; and
• The employee had been singled out for “dedicated leadership” in original position and project.

In its decision to reverse, the appeals court reminds us that “a court reviewing summary judgment looks to whether a reasonable jury could infer retaliation from all the evidence, which includes not only the prima facie case but also the evidence the plaintiff offers to attack the employer’s proffered explanation for its actions and other evidence of retaliation,” Gaujacq v. EDF, Inc., 601 F.3d 565,577 D.C. Cir. (2010).

The court reversed because it found a genuine issue of fact existed as to whether a rational juror would find the lateral transfer to be dissuasive, and retaliatory. This is an important reversal, not only because this case survives summary judgment, but also because retaliation is something that rational jurors can respond to and feel. Thus, context will be important in determining if a lateral transfer is truly lateral, or if it is punishment.

Lindy Korn practices at The Law Office of Lindy Korn and can be reached at [email protected] or (716) 856-KORN (5676).