Think about this one. You are a custodian at a school building, working the night shift. You have fallen on hard times. You are homeless, and have no means of transportation. Well, of course you can walk—and walking was just fine until the district moved you to another building that was 16 miles away. Would you be willing to walk 16 miles to get to work? And another 16 to get to wherever it is you lay your head down to sleep?
According to Webb v. Round Rock ISD, this is the dilemma that Crystal Webb faced. On top of that, Ms. Webb claims that her employer made this move in an effort to punish her. She had previously filed a complaint with the EEOC, alleging racial discrimination. So Ms. Webb alleged in her lawsuit that Round Rock violated federal law by punishing her for engaging in “protected activity”—filing that EEOC complaint.
We don’t know what happened to the EEOC complaint, but we have a recent decision in favor of Ms. Webb from the 5th Circuit on the retaliation claim. The case is important because it sends a clear message to employers.
The legal issue here is this: what action by the employer amounts to an act of “retaliation”? The legal term used here is “adverse employment action.” Employers can do things to employees that run the gamut from trivial to severe. On the severe end, you have termination. On the trivial, you have the boss who never says “good morning.”
But what about this case? Ms. Webb’s pay was not cut. Her duties were not changed. This was a “lateral transfer” in every sense, except for the fact that Ms. Webb had no car, and could not get to the new jobsite without a ridiculously long walk.
The federal district court ruled in favor of the district in this case, holding that “Webb’s new position did not offer less opportunities for promotion or salary increases, did not involve a greater likelihood of termination, or the like.”
The 5th Circuit reversed that decision. The Court cited Supreme Court authority for the proposition that “a lateral transfer can amount to an adverse employment action without affecting these usual terms of employment.” Burlington Northern & Santa Fe Railway v. White, 548 U.S. 53 (2006). The issue is not simply pay, or hours, or potential for promotion. The issue is whether the employer’s action was sufficiently severe to dissuade a reasonable employee from taking the protected action. In other words: if you knew that your employer would respond to your EEOC complaint by transferring you to a school that required you to walk 32 miles a day, would you be “dissuaded” from filing that complaint? Would a “reasonable employee under similar circumstances” feel that way?
The court specifically said that the circumstances of the particular employee matter. “Context matters,” the Supreme Court said in the Burlington case. Thus what is “adverse” to one employee is not “adverse” to another. The High Court offered an example: “A schedule change in an employee’s work schedule may make little difference to many workers, but may matter enormously to a young mother with school age children.”
By that logic, a transfer to another building may be no big deal to many workers, but matters a lot if you have to walk to work.
Two caveats about this case: first, the 5th Circuit ordered that this one not be “published” in the official reports, and thus it is not supposed to serve as a precedent in future cases. Second, the case is in the very early stages. Round Rock sought dismissal of the case on the theory that there was no “adverse employment action” here. The district lost that argument, but Ms. Webb now faces the burden of proving the truth of her allegations. So we shall see.
The case is Webb v. Round Rock ISD, decided by the 5th Circuit on December 11, 2014. The citation is 2014 WL 6980143.
DAWG BONE: A “LATERAL TRANSFER” CAN BE DEEMED AN “ADVERSE EMPLOYMENT ACTION.”