|Jottings By An Employer's Lawyer|
Tuesday, September 05, 2006
Did Burlington Northern Make the Difference?
Although quoting several of its prior decisions where transfers with loss of duties had been sufficient to constitute a materially adverse action, the Court not only discussed the Supreme Court's decision at some length, but gave a nod to it as making a difference -- noting the plaintiff challenged the district court's determination that he had not suffered an adverse employment action, writing: "In light of the Supreme Court's decision in Burlington Northern & Santa Fe Railway Co. v. White, 126 S. Ct. 2405 (2006) ("White"), rendered subsequent to the district court's decision in this case, we agree."
Applying the new test, the Court held:
A rational factfinder could permissibly infer that a reasonable employee in the position of DSS Assistant Commissioner could well be dissuaded from making a charge of discrimination if doing so would result in a transfer to an office in which, inter alia, he would not be allowed to perform the broad discretionary and managerial functions of that position, no one would report to him, and he would be forced to do work normally performed by clerical and lower-level personnel.Notwithstanding the nod to Burlington Northern, it is not clear that it was outcome determinative in this case. But in the 5th Circuit, which had the now rejected "ultimate employment action" test, the Court has sent at least two summary judgment dismissals back to the lower courts for review under the new standard. Clearly at least in some locales it will make a difference.