• Transfer to More Demanding Job is Not an Adverse Job Action
  • April 29, 2003
  • Law Firm: Ford & Harrison LLP - Atlanta Office
  • The Sixth Circuit Court of Appeals has held that a transfer to a more physically demanding job, with no decrease in pay or benefits, is not an adverse job action that could be the basis of a Title VII retaliation claim. See White v. Burlington Northern & Santa Fe Railway Co.

    The plaintiff, White, was hired as a maintenance of way track laborer. The duties of this job included maintaining and oiling railway switches and doing repairs. Because White had prior experience as a forklift operator, Burlington Northern assigned her the forklift duties involved in this position and removed these duties from the male employee who had been performing them.

    After she was hired, White complained that her foreman subjected her to sexual harassment and discrimination. The company investigated her complaint, suspended the foreman without pay for 10 days, and ordered him to attend a sexual harassment training session. On the same day the foreman was suspended, the railroad reassigned White's forklift duties to the male employee who had performed these duties before White was hired. The company assigned White to work full time on the railroad tracks. The company said it did this because male employees senior to White claimed she received preferential treatment because of her sex when she was given forklift assignments instead of working on the track.

    Subsequently White was involved in an incident with her foreman in which the foreman claimed White was insubordinate and removed her from duty. White and her union filed a grievance over this suspension and the company ultimately reinstated White with back pay, including overtime and benefits to which she was entitled during the suspension.

    White sued Burlington Northern claiming sexual harassment and retaliation based on her transfer to track duty and her temporary suspension. The case was tried before a jury, which awarded White $43,500 in compensatory damages on the retaliation claim. Burlington Northern filed motions requesting the judge enter a judgment in its favor or grant it a new trial. The trial court denied these motions and the company appealed to the Sixth Circuit. The Sixth Circuit found that White's transfer and temporary suspension were not adverse job actions as required to prove a retaliation claim and set aside the jury's verdict.

    In analyzing White's claim that her transfer to a more demanding position was an adverse job action, the court noted that lateral transfers are not normally considered adverse actions for Title VII purposes. White argued that her transfer involved unique circumstances because she was transferred from a light duty position on a forklift to a more physically demanding position on the track. The Sixth Circuit disagreed, holding that "[t]he fact that forklift duty is less physically demanding than track maintenance work does not make White's reassignment a cognizable adverse employment action." The court noted that White was hired as a track maintenance worker and that one of her explicit duties was to maintain the railroad tracks. The court failed to see why requiring White to do a job she was hired to do was an adverse employment action.

    The court also held that White's temporary suspension was not an adverse job action because the company ultimately reinstated her with back pay. Because White was reinstated, the suspension was not the "ultimate employment decision" and could not be the basis of a retaliation claim.