When Is a Transfer an Adverse Employment Action?

This was one of the questions faced by the court in Rayborn v. Bossier Parish School Board, 881 F.3d 409 (2018).  Lori Rayborn was the school nurse at Parkway High School.  Following the suicide of a student with a disability, Lori spoke out about school’s failure to support the student.  After speaking out, she began having difficulties with her supervisors and was transferred to another school.  She resigned and filed suit against her employer.  One of her claims was that the decision to transfer her was made in retaliation for her whistleblowing by speaking out about the school’s failure to appropriately support and accommodate the student.

The trial court granted summary judgment in favor of her employer on the retaliation claim.  The majority affirmed the summary judgment on the basis that Lori’s transfer to another school did not constitute an adverse employment action.  The dissent disagreed, arguing that the trial court, rather than granting summary judgment, should have allowed the jury to decide whether or not the transfer constituted an adverse employment action.

The majority and dissent agreed on standard to be used in determining when a transfer constitutes an adverse employment action.  A transfer can be the equivalent of a demotion– even though the employee’s compensation is unchanged—if the new position is shown to be objectively worse, such as being less prestigious, less interesting, or providing less room for advancement.  In finding that Lori’s transfer was not an adverse employment action, the majority reasoned that Lori did not lose any pay or benefits and that her job duties remained the same. 

The majority acknowledged that Lori’s office facilities at the school where she was transferred were less desirable, but did not find that this difference amounted to a demotion.  The dissent examined all the evidence upon which Lori relied in claiming that the transfer amounted to a demotion.  Lori claimed that her office at the school where she was transferred was unclean, devoid of a means for the safe disposal for used needles, and lacked the space, equipment, and privacy to provide adequate medical care.  She claimed that these conditions prevented her from exercising her nursing skills and succeeding in her new position.  The dissent found that Lori’s evidence was sufficient to overcome summary judgment by raising a fact issue for the jury to decide.  The dissent noted that the evidence she marshalled in support of her argument that her new position was objectively worse than her former position was as strong as the evidence in earlier cases where juries found that transfers constituted adverse employment actions.

This decision, like others, illustrates that whether or not a transfer constitutes an adverse employment action depends on the specific circumstances.  Have other employees voluntarily transferred into the position?  Is the position generally regarded by employees as less prestigious?  Are the duties in the position more mundane than the duties of the position previously held by the employee?  From an employer’s perspective, these are questions to consider in thinking about whether the transfer of an employee could be characterized as an adverse employment action taken in retaliation for the employee’s protected activity, such as making a claim of discrimination based on gender, age, or race.

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