Lateral Transfer Can be Adverse Job Action
In Czekalski v. Peters, D.C. Cir. No. 05-5221 (2/02/07), the U.S. Court of Appeals for the District of Columbia held that the reassignment of a female Senior Executive Service employee in the Federal Aviation Administration from supervising 960 employees and a $400 million budget to supervising fewer than 10 employees and little or no budget was an adverse employment action. The court found that the lateral transfer could constitute an adverse employment action even though the plaintiff did not experience a loss of salary, grade or benefits. It was noted that withdrawing an employee’s supervisory duties or reassignment with significantly different responsibilities may constitute such an action.
After rising to supervise 260 federal employees, about 700 contract employees, more than 50 separate programs and an annual budget of $400 million, the plaintiff was reassigned to the position of program manager of the Y2K Project. Although the government argued the importance of the Y2K program, the plaintiff was moved down the FAA hierarchy and reported to a former peer. The court noted that the government’s contention might be inconsistent with her supervisor’s claim that he reassigned her because she allegedly did not perform up to standards. The court held, “Whether a particular reassignment of duties constitutes an adverse action for purposes of Title VII is generally a jury question,” citing Burlington Northern and Santa Fe Ry. Co. v. White, 126 S.Ct. 2405 (2006).
The court also found that the plaintiff had established a prima facie case of discrimination by creating a genuine issue as to whether her performance was satisfactory. It overruled the magistrate who had ruled that she had failed to show that a similarly-situated person outside of her protected class was treated differently.
While the government tried to argue that the plaintiff’s supervisor treated both men and women the same and had previously selected the plaintiff, there was also independent evidence that he “harbored discriminatory attitudes toward women,” the court wrote. The court then held that “based on the record before us, we see no circumstances that would preclude a rational factfinder from inferring discrimination from pretext.”
The lesson to be learned from this case is that an employee who believes that he or she has been subject to a discriminatory reassignment should pursue the matter regardless of whether there has been any loss of grade or pay. A summary judgment can be defeated by proving that the lateral transfer resulted in a reduction in duties and responsibilities.
This article also appears in FEDweek (www.fedweek.com), a weekly newsletter for federal employees.