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Home / Expert Opinion / Workplace Issues: Lateral transfer at same pay rate can be retaliatory

Workplace Issues: Lateral transfer at same pay rate can be retaliatory

Lindy Korn

The U.S. Court of Appeals for the Second Circuit  held that district court erroneously dismissed the plaintiff’s retaliations claims against the city, and determined that even though the plaintiff’s rank and salary were not reduced, a reasonable police officer could easily view the change from the position of public information officer in the office of the chief of police, to that of general factotum in that office and thence, to equipment, patrol and uniformed positions, as materially adverse changes, Lore v. City of Syracuse, 09-cv-3772(L), (Feb. 2)

The district court had granted partial summary judgment dismissing the complaint on several grounds, including Lore’s retaliation claim due to the fact that because she had not suffered any decrease in rank or salary, that she could not show that she had suffered any materially adverse employment action.

The Second Circuit was thoughtful in holding that “the protections provided by Title VII are not limited to instances of discrimination in pecuniary emoulments,” De La Cruz v. New York City Human Resources Administration, 82 F3d 16,21 (2d Cir. 1996).  The transfer of an employee from an “elite” position to one that is less prestigious, with little opportunity for professional growth, is sufficient to permit the jury to infer that the transfer was a materially adverse employment action, Burlington Northern & Santa Fe Ry. Co. v. White, 548 U.S. at 71 (2006) (“a jury could reasonably conclude that reassignment from a position carrying an indication of prestige to one imposing duties that were by all accounts more arduous and dirtier would have been materially adverse to a reasonable employee”).

In the present case, in the position of Public Information Officer, Lore was assigned to the office of the chief of police, dealt with the media and was the spokeswoman for the department. When she was removed from that position, her duties for several weeks entailed merely doing “odds and ends in the chief’s office;” she was reassigned to Technical Operations, and shortly thereafter reassigned again, this time to supervise uniformed patrol units; in a little more than half a year, she was required to wear a uniform while serving in a community relations unit in which none of the male sergeants were required to wear a uniform. 

This decision is important in that it reminds us that the definition of materially adverse must be examined in context to determine if it might have dissuaded a reasonable worker from making or supporting a charge of discrimination.

Thus, a diminution of prestige in one’s reassignment, and a constant series of reassignments with less access to the chief of police’s office, and much narrower duties, could dissuade someone from complaining, and therefore be  a materially adverse employment action constituting  a valid claim of retaliation.

The Lore case addresses several other issues, but the decision is helpful in clarifying what constitutes a materially adverse action that could dissuade, thereby supporting a valid claim of retaliation.

Lindy Korn practices at The Law Office of Lindy Korn and can be reached at lkk75atty@aol.com or (716) 856-KORN (5676).