One of the appeal options an employee has when given (or denied) a reassignment is to claim that the decision was made for discriminatory reasons, e.g., race, gender, age, etc. But in order to prevail the employee must be able to show that the decision amounted to an “adverse action” as that term is understood in civil rights law. Very recent decisions from the EEOC and a court that can be confusing.

For example, most recently, EEOC overturned the forced reassignment of an agency executive from the Deputy Regional Director of one program to another program. Her salary remained the same. She filed an EEO complaint claiming not only that this amounted to an adverse action under the Civil Rights laws, but also that she was treated disparately from others outside her protected class in being forced to make the move. To make a long story short, EEOC agreed she was discriminated against and even though there was no back pay to award it gave her $15,000 in damages for the humiliation and embarrassment. The linchpin of the decision was EEOC’s opinion that “adverse action merely requires a tangible change in the duties or working conditions constituting a material employment disadvantage.” EEO accepted the employee’s claim that being reassigned from work “where she had worked virtually her entire career and had ‘my experience and all my knowledge,’ to one where she had very little experience” satisfied its definition of an adverse action. (See Kristy D. V. Sally Jewel, Secretary Dept. of Interior, EEOC Appeal No. 0720160003 (8/2016) if you deal with a similar case. So, if a union or LR rep is approached by an employee complaining about being reassigned to a job he knows little about and which will undermine the expertise he has built over a long time, stop and remember that the employee may have a legitimate claim—even if the collective bargaining agreement nor the agency HR manual gives him any protection.

Although not diametrically opposed to the EEOC precedent, the D.C Circuit said something slightly different when it ruled against an employee who was denied a reassignment he wanted and filed an EEO complaint. The court said that within its circuit an action such as a denied reassignment must be “materially adverse” to be appealable under a civil rights claim. The average lay person may not see a big difference between an “adverse action” and a “materially adverse action,” but courts use those razor thin distinctions to distinguish cases all the time—especially when they do not sympathize with one party’s case.

Mr. Ortiz-Diaz went to court asserting not only that he would be more satisfied working in Albany or Hartford—rather than Washington, DC, but that he would be better positioned to advance within the Inspector General’s Office. Specifically, he explained that in order to better position himself for promotion, he sought “to return to the field in order to gain experience at the GS-14 level, establish favorable relationships with supervisors in the field, … and give [him]self a bit of distance from the discriminatory environment at headquarters.”  He asserted that HUD Investigators in Regions 1 and 2, to which he sought transfers were assigned “important, high-profile work,” “were lauded for their accomplishments, and there did not appear to be serious performance deficiencies” in those regions. Additionally, in Albany, his supervisor would have been Rene Febles, an Hispanic whom Ortiz-Diaz believed would not be inclined to discriminate against him because he was an Hispanic and Puerto Rican. By contrast, in the Washington, D.C. office, Ortiz-Diaz explained that he considered his chances of advancement limited because his supervisor was racially biased against Hispanics and other minorities, and he was not alone in that view as demonstrated by letters from colleagues.

In its decision the court pointed to a prior case, i.e., Stewart v. Ashcroft, 352 F.3d 422 (D.C. Cir. 2003) where an employee “denied a lateral transfer — that is, one in which [plaintiff] suffers no diminution in pay or benefits — does not suffer an actionable injury unless there are some other materially adverse consequences affecting the terms, conditions, or privileges of her employment.”  It went on to cite other prior decision holding that, “Purely subjective injuries, such as dissatisfaction with a reassignment … are not adverse actions. … In contrast with purely subjective harms, reassignment with significantly different responsibilities … generally indicates an adverse action.”

Once the court had laid out its precedents it, held that working under the supervisor constituted, at most, “subjective injury” and was therefore not materially adverse, absent some extraordinary set of facts. It went on to concede that “a lateral transfer that increased promotion prospects might qualify, notwithstanding the “speculativeness of the harm.” It also acknowledged that “some actions, such as “hiring, firing, failing to promote, [and] reassignment with significantly different responsibilities … are conclusively presumed to be adverse employment actions, even if any alleged harm is speculative.” However, the court could not get over the fact that the employee’s allegations were no more than “bare assertions, there was no evidence linking the assignment to better promotion prospects, nor had he explained why he would seek transfer to Albany-Hartford at a lower pay rate.  If working a case like this, the lesson to take from the court is that the employee needs more than bare assertions.  See Ortiz-Diaz v. HUD, (D.C.C., No. 15-5008) August 2, 2016

Of course, it is important to remember that when relying on court decisions that there are often conflicting opinions coming from a neighboring court.  For example, this court’s decision point out that some of its sister circuits, for example, the First Circuit explained that an adverse employment action can include the denial of a lateral transfer in view of the “the impact on [the plaintiff]” and the plaintiff’s affidavits that it was “customary practice” to grant “hardship” transfers. If you can get an experience labor attorney to advise you on the case, that would be ideal.

Also keep in mind that the employee may have options as to where s/he files a challenge, e.g., under a collective bargaining grievance procedure, with the EEOC or even FLRA, MSPB, OSC if they have evidence of an improper motive for the reassignment decision.

About AdminUN

FEDSMILL staff has over 40 years of federal sector labor relations experience on the union as well as management side of the table and even some time as a neutral.
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