Jottings By An Employer's Lawyer

Tuesday, September 05, 2006

Did Burlington Northern Make the Difference?

At least at the circuit level there has still not been a lot of activity following the Supreme Court's decision earlier this summer in Burlington Northern v. White. The 2nd Circuit has now addressed Burlington Northern at some length in Kessler v. Westchester County of Social Services (8/23/06) [pdf], but it is not clear that it changed the outcome.

Kessler was an Assistant Commissioner of Social Services. Following his complaints of religious discrimination he was transferred from the White Plains to Yonkers. His law suit was dismissed on summary judgment with the district court finding that there was no adverse employment action since it was a lateral transfer in terms of pay.

The 2nd Circuit focused more on the change of duties.

Whereas he previously "ha[d] overall responsibility for policy formulation, resource allocation, planning and evaluation of programs and procedures, financial and personnel management", in Yonkers he no longer had any such responsibilities. Whereas he had been "[u]nder the general direction of the Commissioner of Social Services or Deputy Commissioner", he no longer reported to them but instead reported to a supervisor whose grade level was no higher than his. Whereas his job had been to "function[] as part of the top management of the Department", he was no longer given any managerial assignments and was not even allowed to attend meetings of lower-level managers. Whereas he had "[s]upervis[ed] . . . a large number of managerial, professional and clerical support staff", upon his transfer to Yonkers he in fact was allowed to supervise no one. He was required to undertake clerical tasks and to perform data entry alongside employees several grades below his.

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.


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