When might denying an employee’s transfer request be considered an adverse employment action under Title VII and Section 1983? In Bonenberger v. St. Louis Metropolitan Police Dept., the U.S. Court of Appeals for the Eighth Circuit weighed the question and came to some interesting conclusions. 

Just the facts

The plaintiff, a white male employee, applied for a transfer to the position of Assistant Academy Director of the St. Louis Police Academy. The position was a high-profile job with supervisory responsibilities and opportunities for promotion. It also had a regular schedule with holidays off, which the plaintiff didn’t have in his current position.

The plaintiff was told by his supervising officer that he shouldn’t bother applying for the position because the job was going to a black female, and “there was no way they were going to put a white male in that position.” The Chief of Police subsequently chose an African-American woman without having interviewed her for the job. The plaintiff filed an internal grievance. In response to the grievance, the Chief stated that he’d selected the African-American woman because she had the most rank and a clean disciplinary record — statements that were inaccurate. 

The plaintiff sued the Police Department and officials, alleging race discrimination and conspiracy to discriminate. A jury found in the plaintiff’s favor and the officials appealed. They claimed that the plaintiff hadn’t established an adverse employment action because the position in question wasn’t a promotion. In addition, the plaintiff wouldn’t have experienced a change in pay or rank if he had been selected for the job. 

Difference of interpretation

To establish a prima facie case of discrimination under Title VII, a plaintiff must present evidence of an adverse employment action brought on by the employer’s discriminatory motive. An adverse employment action is a change in working conditions that results in a material employment disadvantage. 

In Bonenberger, the appeals court held that the employer’s denial of transfer was an adverse employment action because the position would constitute a material change in working conditions. It found that changes in supervisory duties, prestige, and eligibility for promotion could produce materially different working conditions. 

To prove a Sec. 1983 conspiracy claim, a plaintiff must establish that:

1. The defendants conspired with others to deprive him or her of constitutional rights,
2. One of the alleged co-conspirators engaged in an overt act in furtherance of the conspiracy,
3. The overt act injured the plaintiff, and 
4. The defendant reached an understanding to violate his or her rights. 

The employer in this case argued that the employee couldn’t prove that there was an agreement or understanding because the supervisor’s comment didn’t indicate that the supervisor and the Lieutenant had agreed to hire only a black woman. The court found this to be a reasonable interpretation. However, it went on to find that that evidence also could be interpreted to support an inference that the supervisor and the Lieutenant had reached an agreement because the supervisor used “they” in the statement “there was no way they were going to put a white male in that position.” A reasonable jury could interpret “they” to mean that the supervisor was referring to himself and the Lieutenant.

Motion denied

The appeals court affirmed the trial court’s denial of the employer’s motion for judgment as a matter of law. Employers take note: Denying an employee a lateral transfer could be considered an adverse employment action if the transfer would offer material changes in working conditions — even if those changes don’t involve pay or rank.

© 2016