No Good Deed Goes Unpunished

Managers Must Understand the Term ‘Adverse Employment Action’

By HUNTER S. KEIL

When an employee sues their employer, it is often obvious why they are upset. They may have been fired, their hours may have been cut, or they may have been passed over for a promotion. Sometimes, however, the employer action is not obviously adverse or apparently detrimental to the employee. This leads to the important threshold question of what constitutes an ‘adverse employment action.’

While the term ‘adverse employment action’ does not appear anywhere in the Massachusetts anti-discrimination statutes, courts have long used it to differentiate between terms, conditions, or privileges of employment that are material — and therefore governed by the anti-discrimination statute — and those effects that are trivial and not properly the subject of a claim. In order for a plaintiff to successfully bring a claim against their employer for discrimination or retaliation, they must prove they were subject to an adverse employment action.

The courts and the Mass. Commission Against Discrimination (MCAD) have interpreted what constitutes an adverse employment action broadly, and what may appear to an employer to be a neutral and rational action could be found by the courts or the MCAD to be an adverse employment action resulting in large damages.

This is exactly what happened this past March in Superior Court. In Kelley v. Commonwealth of Massachusetts Department of Conservation and Recreation, a Superior Court judge upheld a jury’s finding that a lateral transfer of an employee, which could have been seen as a promotion, was an adverse employment action for the purposes of a retaliation claim. The trial judge upheld the jury’s award of $500,000 in emotional distress and $250,000 in punitive damages. While the employer may have felt that its actions were a rational response to a difficult situation, and that the plaintiff was not negatively impacted, the jury and judge saw it differently.

The plaintiff in this case was employed by the Department of Conservation and Recreation as a clerk in the sign shop. The plaintiff was educated only to a seventh-grade level. She had previously applied to have her position upgraded to an administrative assistant I, but that request was denied because she was not deemed to have the requisite skills for that position. In 2005, a co-worker and a supervisor began having an affair, resulting in what the judge called “blatant favoritism.” In January 2006, the plaintiff complained about the situation, and this complaint eventually resulted in a sexual-harassment investigation by human resources into the relationship between the plaintiff’s supervisor and the co-worker.

During the course of the investigation, the plaintiff was interviewed at her place of employment in alleged disregard for her privacy. The supervisor under investigation was told to stay away from the sign shop, but the plaintiff saw him there. Further, an e-mail the plaintiff sent summarizing the allegations was shared with the co-worker, and was found in other places in the workplace. This upset the plaintiff to the extent that she took approximately five weeks of sick leave.

The investigation concluded that the relationship between the co-worker and supervisor had been inappropriate and detrimental to the workplace. After the findings were released, the plaintiff sent a letter to the defendants voicing her displeasure with some of the findings and informing her employer that she may file a complaint with the MCAD. When she returned to work, there were changes to her starting time and lunch break, and she was asked to take a refresher course for a skill she claimed she no longer performed. The plaintiff was upset enough by these changes to leave work and go back on sick leave.

Approximately a week later, the plaintiff was transferred laterally to a position as an administrative assistant in a different location. The reason given for this transfer was to make the plaintiff more comfortable, but the plaintiff was never consulted as to whether the transfer would in fact make her more comfortable.

The trial judge explained that job transfers are reviewed under the “totality of the circumstances,” and that multiple factors in this case supported the jury’s finding of an adverse employment action. These reasons included a longer commute, new duties that the employer had previously determined the plaintiff did not possess the skills for, different hours, and a loss of the comfort the plaintiff had felt in her previous position.

This case highlights just how cautious employers must be when transferring employees or making any significant changes to the terms and conditions of employment. The employer may have thought it was doing the right thing in this case by removing the employee from a work environment that she was clearly struggling with and giving her a job title she had previously applied for. The employer likely did not even consider many of the factors the court relied on in finding that the transfer was an adverse employment action.

The courts and MCAD will consider how the transfer will affect the employee in ways besides salary and benefits, and employers must consider these factors as well. The easiest way the employer in this case could have protected itself was by discussing the move with the employee. Some of the factors taken into account — such as commute times — may not have been known to the employer at the time of the transfer. The only way the employer could have understood the multiple factors the court considered would have been to engage with the employee to understand what factors the employee saw as significant. While the standard for an adverse employment action is an objective one — an employee’s subjective feelings are not enough — this case highlights how it is difficult to determine whether the employee has been materially disadvantaged without understanding his or her subjective feelings.

Finally, extra care must be taken when an employee has engaged in protected activity. The employer knew in this case that the employee had engaged in protected activity by filing the sexual-harassment complaint, and the employer knew that she was considering action in the MCAD. In such a scenario, employers must take extra caution before any change is made to the terms and conditions of employment.

Hunter Keil is an associate with Robinson Donovan, P.C., where he concentrates on employment law and litigation; (413) 732-2301; hkeil@robinson-donovan.