By Marjorie Johnson, J.D.
Though the employee claimed she was effectively demoted because of her disability and/or EEOC activity, she abandoned her constructive demotion claim on appeal; thus, because she accepted the transfer that she voluntarily requested, there was no actionable adverse action.
A county employee who suffered from multiple sclerosis, and who voluntarily agreed to a lateral transfer to settle an EEOC charge she had filed after her request for unscheduled telework was deemed untenable, failed to convince the Fourth Circuit to reinstate her ADA claims of disability discrimination and retaliation. Affirming dismissal of her lawsuit on summary judgment, the appeals court explained that “a transfer is not an adverse action when it is voluntarily requested and agreed upon,” which was what occurred here since at her request, the county placed her in a position with the same pay and similar responsibilities. Circuit Judge Wynn wrote a separate concurrence opining that while the employee had abandoned her constructive demotion claim on appeal, a transfer should not be deemed voluntary if an employee is constructively demoted (Laird v. Fairfax County, Virginia, October 23, 2020, Richardson, J.).
Unscheduled telework deemed untenable. The employee, who worked for the county for more than 25 years, advised her supervisor about her multiple sclerosis diagnosis in 2012. At the time, she held a “contract specialist” position in the procurement and material management (P&M) department. She requested unscheduled telework as an accommodation for her disability, which her supervisor approved. However, the two agreed that the arrangement could be revisited at any time and that its effectiveness would be assessed by management at least annually. Over time, the supervisor found that the arrangement was untenable.
EEOC charge. The accommodation was subsequently modified to instead allow the employee to telework on two scheduled days per week, while requiring her to come to the office for scheduled meetings. Unhappy with the new arrangement, she filed an EEOC charge claiming that she should have been provided the initial, more generous, accommodations to her disability. The parties engaged in settlement discussions over the next several months, during which time the employee indicated that she would be amenable to a lateral transfer.
Lateral transfer. The parties eventually agreed that the employee would accept a lateral transfer to the county police department (PD), where she would maintain her pay grade, position within the salary band, and opportunity for future promotion. She was also given up to 16 hours of flexible telework each work week as an accommodation, as well as a lump-sum payment of $30,000. She was transferred to the PD’s quartermaster section, which was responsible for uniforming and equipping about 2,000 members of the agency, and given the title of “management analyst.”
After about a month in her new role, the employee complained that she was not performing the duties in her job description. In response, the PD created a new “buyer” position for her, which removed the duties that she complained about, but she refused to formally accept the position. Though she nevertheless remained in her new role, she believed that her new responsibilities were “boring” and that the transfer negatively affected her opportunity for future promotion. She subsequently filed this ADA lawsuit, which the district court dismissed on summary judgment, ruling that she failed to show she suffered an adverse action.
Was there a “significant detriment?” While the scope of actions that qualify as an “adverse action” differs slightly depending on whether the claim is for discrimination or retaliation, “the required effect or adversity from such actions is described in very similar language for both claims,” explained the Fourth Circuit. For a retaliation claim, the harm must be a “significant detriment” and not “relatively insubstantial” or “trivial.” Similarly, for a discrimination claim, the adverse action must result in “some significant detrimental effect,” requiring more than a position that is “less appealing” to the plaintiff.
Constructive demotion claim abandoned. Here, the employee asserted that she was effectively demoted because of her disability and in retaliation for her EEOC activity, but abandoned her constructive demotion claim on appeal. Thus, the Fourth Circuit declined to decide the yet unanswered question of whether it would recognize a claim of constructive demotion under the ADA. Instead, it held that her claims failed because, “[i]f an employee voluntarily requests a transfer, and the employer agrees to it, there is no actionable adverse action.”
No adverse action. As part of her settlement, the employee voluntarily agreed to laterally transfer to the PD as a “reasonable accommodation.” In exchange, the county agreed to create a new position for her, even eventually agreeing to change the title of that position despite the internal confusion it might cause and thus going beyond what the ADA required. As a result, she was able to telework each week while holding a job with the same salary and similar responsibilities as before. Moreover, because she no longer argued that the intolerable conditions in her prior job compelled her to accept the settlement, she could not claim discrimination and retaliation based on her employer’s decision to make the agreed-upon transfer.
Concurrence. In a separate concurrence, Judge Wynn agreed that the employee’s ADA claims were doomed by her failure to show an adverse action given that she abandoned her constructive demotion claim, but further opined that an employee’s request for a transfer is not “voluntary” if the employee is subject to work conditions “sufficiently intolerable to force her to seek a transfer.” In other words, “a transfer is not voluntary if the employee was constructively demoted.” The judge also noted that other federal circuits that have faced the question of whether to recognize claims of constructive demotion have decided that such claims are cognizable, and that the Fourth Circuit has held that a demotion may itself cause a constructive discharge.
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