By Nicole D. Prysby, J.D.
A professor’s agreement to transfer to a different department was not voluntary where her university employer misled her about the potential effect on her career, held the First Circuit. The professor alleged that the chair of her department (also her direct supervisor) was sexually harassing her. She reported the behavior and the university gave her the choice of remaining in the department or moving to a different department. The dean told the employee she would be allowed to continue teaching her same classes, and the employee accepted the transfer on that condition, but after the transfer, she was reassigned to different, lower-level classes. The district court held that the transfer was voluntary and therefore not an adverse employment action, but the First Circuit reversed, holding that a jury could find the employee would not have accepted but for the misrepresentations and that the transfer was in retaliation for the employee’s activity in reporting the sexual harassment. And the university failed to provide a legitimate, nondiscriminatory reason for the transfer because its justification for the changes shifted several times (Carlson v. University of New England, August 10, 2018, Lynch, S.).
Transfer. The employee was a professor in the university’s Exercise and Sport Performance (ESP) Department. She alleged that the department chair began harassing her, and she reported the harassment to HR. After meeting with the HR director and her supervisor to discuss the harassment, a number of purportedly retaliatory actions were taken against her, including a transfer to another department. The professor contended that the transfer was in retaliation for her complaints of sexual harassment. She also argued that the transfer was an adverse employment action, as it prevented her from working in the area of her expertise and separated her from students who might otherwise serve as her research assistants.
Lower court proceedings. The district court granted summary judgment for the university on the employee’s Title VII and state-law claims, finding that the professor participated in the decision to transfer, and that the transfer was voluntary. The university, acting in response to the employee’s concerns, gave her the choice to either remain in the ESP Department or transfer. The employee argued that the transfer was not voluntary because she was forced to choose between two unacceptable alternatives. But the district court disagreed. If the university had maintained the status quo by keeping her in the ESP Department with the same supervisor, it would not be liable for retaliation because doing nothing is not a retaliatory act. It follows that giving the professor the choice to either maintain the status quo, or make a change if she wished, was not retaliatory. The decision not to provide the professor with her preferred solution of remaining in the ESP Department but working under a different supervisor also was not retaliatory, the lower court held. Therefore, the court found the professor failed to establish that the transfer was an adverse action.
Transfer. The First Circuit reversed, finding the employee demonstrated that the transfer was an adverse employment action. The transfer to the new department led to a change in her teaching assignments, her removal from the department website, and her removal as an advisor to ESP students. In finding that the transfer was voluntary and therefore not an adverse employment action, the district court overlooked the evidence that the dean had misrepresented to the employee how the transfer would affect her. The dean promised the employee that if she transferred, she could continue teaching in the ESP Department and the employee agreed to the transfer under the condition that she could keep teaching her classes.
After the transfer, however, the dean assigned the employee to teach different, lower-level courses. A jury could find the employee would not have accepted the transfer but for the misrepresentations and that the transfer was in retaliation for the employee’s activity in reporting the sexual harassment. The university failed to articulate a legitimate, nondiscriminatory reason for the transfer, because it provided shifting justifications for the change—stating first that the change was a natural result of the move to a new department, then that it was done because the employee was not communicating well with her former supervisor and because the university wanted to create distance between the two individuals.
Salary issues. The employee had also alleged retaliation based on her salary raises in 2016 and 2017, which were the lowest of her career. The district court held that she could not show a dispute of fact on this point because she presented no evidence on her accomplishments for those years versus prior years. The First Circuit upheld the district’s decision on this matter. The court also rejected the employee’s argument that the raises were retaliatory because a faculty member’s annual raise is based on the total amount of funding available for raises. Because the employee provided no evidence on the amount of funding available for 2016 or 2017, the court had no way to analyze the claim.
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