Connecticut Employment Lawyer & Attorney : Daniel Schwartz : Stamford, Hartford New Haven, CT

It's a common observation among employment lawyers that employers can be sued for lots of on-the-job actions that don't lead to termination.  Whether that employee, however, will prevail on the claim is an entirely different question. A case yesterday decided by the United States District Court of Connecticut highlights that distinction.

In Charles v. State of Connecticut, Judicial Branch (download here), an African-American probation officer claimed that she was denied a request to transfer because of her race.  She requested a transfer from the Milford, Connecticut office, where she performed  supervisory functions, to the New Haven office where she would  perform intake functions. It was undisputed that although her responsibilities would change after the transfer, there would be no change in her pay or benefits.  The position was ultimately filled with a white woman whose skills better matched the position description.

On a summary judgment motion by the employer, Senior Judge Dominic Squatrito  found that the employee did not establish a claim for race discrimination because, among other things, she did not suffer an "adverse employment action".

What is an adverse employment action? The Court looked to some other cases in the transfer context to find:

“If a transfer is truly lateral and involves no significant changes in an employee’s conditions of employment, the fact that the employee views the transfer either positively or negatively does not of itself render the denial or receipt of the transfer [an] adverse employment action.’” Nevertheless, “[a] lateral transfer that does not result in a reduction in pay or benefits may be an adverse employment action so long as the transfer alters the terms and conditions of the plaintiff’s employment in a materially negative way.”

Here, the employee admitted that her salary and benefits were unaffected, but argued only that her transfer hurt her chances to be promoted in the future.  The Court rejected that argument saying that there was no evidence that the transfer denial would affect her in the future. Indeed, because she already had experience in the "intake" function (a reason the employee claimed she needed the position), the Court saw no reason why this denial would hurt her in the future.  Ultimately, what was telling to the court is that:

her pay was never adversely affected; she was never demoted, disciplined, suspended or terminated; and her job title was never adversely changed. Indeed, [the employee] admits that not being transferred to the New Haven office did not adversely affect her, and that she has not  experienced any sort of adverse employment action as a result of her not obtaining the transfer.

In short, the Court seems to view this dispute as nothing more than a kerfuffle. Or much ado about nothing. 

So what's the takeaway for employers in other cases? Two things.

• First, this should confirm for employers that a very small number of employees may sue for anything -- no matter how trivial.  Good documentation and support for decisions (that are obviously non-discriminatory) are cruicial to getting these claims defeated.
• Second, a good human resources practice that recognizes employees desire to get ahead and that works with those employees to develop a career path, can help employees see more options than they might otherwise have.  HR should not simply be about discipline and discharge, but working with supervisors and employees to allow employees to work to their fullest potential.

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Disciplining employees for violations of company policy is, as a general rule, a good thing for an employer to follow.  However, when a company disciplines employees differently for the same offense, perceptions of discrimination (rightly or wrongly) can creep in.

A new case released this afternoon from the United States District Court illustrates that.  In Norris v. Metro-North Commuter Railroad Co.(Case No. 06-cv-00439)(Arterton, J.), the Court denied an employer's summary judgment on some discrimination claims because it concluded that there was a triable issue as to whether an employee was disciplined more severely because of his race. Indeed, the court also relied on an apparent statement by the supervisor that the discipline was harsher than in past years.

Readers to this blog should understand that denials of summary judgment are not uncommon in employment discrimination cases and that the decision is not a final ruling on the merits of the case.  Indeed, the employer in this case was able to get summary judgment (i.e. get the claims dismissed) on several other claims that were brought by the employee.

The case is a good illustration, though, about how small variations in punishment -- even over a multiple year period -- may lead to the foundation of a discrimination claim. 

Now, there may be very valid reasons why the discipline that an employer imposes is different than others. Suppose, that the employee had been warned previously, that fact might warrant a harsher punishment for a repeat violation. Or suppose that the employer was "cracking down" on these types of incidents and had notified its employees of the consequences of violations of policy. In either of the two instances, the employer's decision will certainly be bolstered if the employer identifies, in writing, at the time of the incident, why the punishment is different than others. It still may not defeat summary judgment, but it will help bolster a company's arguments later that the discipline was well-thought out and fair.

A review of the briefs for summary judgment spells out much more history and facts than this blog post.  You can find the memorandum in support of summary judgment here, with the opposition brief here and the reply brief here.  Combined with the court's analysis, it provides some insights into how the federal courts review complaints that are based on multiple causes of action and addresses several related causes of action.

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