DENIALS OF LATERAL REASSIGNMENTS CAN BE EEO ADVERSE ACTIONS
On August 25, 2016 we posted a story about a D. C Circuit court decision holding that an employee may not file an EEO complaint over a lateral reassignment because the court did not consider that kind of personnel action to be an enough of an “adverse action.” The Civil Rights laws and regulations require employees suffer a certain level of harm before they can file a complaint in order to prevent cases over frivolous slights, personality conflicts, and ego eruptions. We expressed our disappointment at the time over the court’s narrow view of the law and insensitivity to how harmful a lateral reassignment can be. However, the court has come to its senses and reversed itself, which opens the door for federal employees to challenge lateral reassignments or the denial of them as violations of the civil rights laws. Here are the details on how to do it.
Rather than an involuntary lateral reassignment, the employee in this case was denied a lateral reassignment he wanted for several reasons. First, it would enable him to move to the same city where his wife lived, which was about 300 miles from his current agency location. Second, he wanted to get out of HQ and into the field because the work was more challenging and career enhancing. Third, the employee, Mr. Ortiz-Diaz, wanted to get away from the control of a higher level manager in HQ who showed all the signs of not liking minority employees.
Even though the manager of the field office the employee wanted to move to said he not only had a vacant position, but also that he wanted to put this particular employee, the higher level HQ blocked the move. Ultimately, the employee left the HQ office for a lower-graded job, but not before filing an EEO charge alleging illegal discrimination by the higher level manager to block the requested reassignment.
Although the court stopped short of agreeing that all involuntary lateral reassignments or denial of requested lateral reassignments are always sufficiently adverse to the employee to permit him to file an EEO complaint, it said that “a discriminatory denial of a lateral transfer away from a biased supervisor can certainly be actionable under Title VII” because it likely affects “future employment consequences.” In other words, if an employee is denied a requested reassignment or transfer, s/he can safely file a EEO complaint if s/he can point to some evidence that the denial was based on illegal discrimination, e.g., disparate treatment with a similarly situated employee, the denial decision was made by someone who has shown his/her bias in the past, etc.
Very few collective bargaining contracts contain language that would enable the employee to file an effective grievance to get a desired reassignment and nothing in personnel law or regulation creates the right to the move. Consequently, an EEO change may be the employee’s best bet. It certainly creates a significant risk for the manager who discriminated because EEOC could order the agency to discipline the employee on top of giving the employee retroactive pay for promotions or awards missed and compensable damages, etc.
We have deleted the original August 25, 2016 posting to avoid misleading anyone. If you want to read more about the details of this latest court decision, check out Ortiz-Diaz v. U.S. HUD, No. 15-5008 (August 11, 2017).