A Title VII Claim Alleging That A Transfer Was Motivated By Race And National Origin Was Not Actionable Where Plaintiff Simply Had A Purely Subjective Preference For One Position Over Another

The 7th Circuit's Judge Posner seems incapable of producing opinions that are anything other than clear, concise and eminently readable. In this case, he analyzes, in typically lucid fashion, the definition of "compensation, terms, conditions, or privileges of employment" under Title VII:

The Chicago Housing Authority's Office of the Inspector General has two divisions, auditing and (field) investigations. The plaintiff in this Title VII case, Siegfried Herrnreiter, is an accountant who was employed in the auditing division. Investigators traditionally are trained law enforcement officers, such as former police officers or Treasury agents. But the Inspector General decided that it might be helpful in financial investigations if one of the investigators was an auditor, so Herrnreiter was transferred to the investigation division. He loved being an investigator. He found it more interesting and challenging than auditing, and he also had the use of a car supplied by the CHA and did not have to sign in and out of the office, as he had had to do as an auditor. But the idyll was short-lived. After six months the newly appointed Inspector General, Leonard Odom--who had approved Herrnreiter's transfer to the investigations division several months after it had taken place--transferred him back to auditing. A couple of months later Odom fired Herrnreiter, ostensibly for unsatisfactory performance of the auditing tasks that had been assigned to him. Herrnreiter is a white, naturalized U.S. citizen of German origin; Odom is black; and Herrnreiter contends that his transfer back to the auditing division and his subsequent termination were motivated by his race and national origin. The district court granted summary judgment for the housing authority.

Title VII does not forbid every act of invidious discrimination that an employer might commit against an employee; the act must be "with respect to [the employee's] compensation, terms, conditions, or privileges of employment." 42 U.S.C. § 2000e-2(a)(1). The cases paraphrase this either as "a tangible employment action," that is, "a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits," or as a "materially adverse employment action," Herrnreiter interprets these paraphrases to mean any action that displeases the employee. If he is right, one dirty look would be enough to trigger liability under Title VII. The language that we have quoted from the statute and the case law does not support his interpretation, but we do not stop there.

The cases that find the statutory criterion (however it should be formulated) satisfied can be divided into three groups:

1. Cases in which the employee's compensation, fringe benefits, or other financial terms of employment are diminished, including, of course, as the limiting case, termination of employment.

2. Cases in which a nominally lateral transfer with no change in financial terms significantly reduces the employee's career prospects by preventing him from using the skills in which he is trained and experienced, so that the skills are likely to atrophy and his career is likely to be stunted. These cases differ from those in the first category only in involving a future rather than present harm; the harm nevertheless is financial. They are to be distinguished from cases involving "a purely lateral transfer, that is, a transfer that does not involve a demotion in form or substance.... [Such a transfer] cannot rise to the level of a materially adverse employment action. A transfer involving no reduction in pay and no more than a minor change in working conditions will not do, either."

2a. A variant of category 2 is where the employee's job is changed in a way that injures his career just as in the cases in that category except that there is no transfer.

3. Cases in which the employee is not moved to a different job or the skill requirements of his present job altered, but the conditions in which he works are changed in a way that subjects him to a humiliating, degrading, unsafe, unhealthful, or otherwise significantly negative alteration in his workplace environment--an alteration that can fairly be characterized as objectively creating a hardship, the classic case being that of the employee whose desk is moved into a closet. This category includes cases of constructive discharge: the employer has made the job unbearable for the employee. It also includes cases of harassment: mistreatment of an employee by coworkers or supervisors that is sufficiently severe to worsen substantially his conditions of employment as they would be perceived by a reasonable person in the position of the employee. Categories 2, 2a, and 3 often overlap.

What remains are cases of purely subjective preference for one position over another--which is this case. An auditor's job is not objectively inferior to an investigator's job that has identical financial terms; nor is an accountant who is transferred from investigations to audits deprived of the opportunity to use the skills for which he is trained--the opposite is the case. The use of a company car and being excused from having to sign in or out of an office might be preferred by some employees, but not having to run around all day might be considered by others ample compensation for giving up those particular perks. The two jobs were equivalent other than in idiosyncratic terms that do not justify trundling out the heavy artillery of federal antidiscrimination law; "otherwise every trivial personnel action that an irritable, chip-on-the-shoulder employee did not like would form the basis of a discrimination suit. The Equal Employment Opportunity Commission, already staggering under an avalanche of filings too heavy for it to cope with, would be crushed, and serious complaints would be lost among the trivial."

Out of caution we note that some of the cases we have cited because they contain good discussions of when an adverse employment action is actionable were actually cases involving retaliation. We do not mean to suggest by such citations that retaliation, to be actionable under Title VII (or other statutes), has to involve an adverse employment action. It does not. Some cases reach this conclusion by interpreting "adverse employment action" in the retaliation context as not requiring an actual employment action; an example is Berry v. Stevinson Chevrolet, where the retaliation took the form of preferring charges of theft and forgery against an employee who had filed a charge of discrimination. As we explained in McDonnell v. Cisneros, "No limiting language appears in Title VII's retaliation provision. 42 U.S.C. § 2000e-3(a). The language of 'materially adverse employment action' that some courts employ in retaliation cases is a paraphrase of Title VII's basic prohibition against employment discrimination, found in 42 U.S.C. § § 2000e- 2(a)(1) and (2).... The provision regarding retaliation may intentionally be broader, since it is obvious that effective retaliation against employment discrimination need not take the form of a job action." We left open in that case the question whether retaliation in other forms was actionable under Title VII, remarking that "shooting a person for filing a complaint of discrimination would be an effective method of retaliation, though ... the victim of the retaliation would have other, and more powerful, remedies than a suit under Title VII. This would be a reason for confining the provision to retaliation that takes the form of an adverse job action." The cases cited earlier in this paragraph have now resolved the issue by holding that the provision is not so confined.

But what if the retaliation does take the form of an employment action: must that action be as severe as would be required if the action were charged as discrimination rather than as retaliation? The cases like Berry that define adverse employment action more broadly in the retaliation context implicitly answer "no," though many cases state or more commonly assume that the answer is "yes." That may be a welcome simplification, but it can be criticized especially in cases in which an employee is retaliated against for making or more commonly assisting a complaint on behalf of a coworker, as it presumably takes rather little to deter such altruistic action, which is nevertheless protected by the statute. We are not aware that any of the decisions that equate the standards for discrimination and retaliation involved a third-party complaint. This is not an issue to be resolved in this case, however, which does not involve retaliation, and we mention it only to emphasize that in citing retaliation cases for their discussion of what "materially adverse employment action" means we do not necessarily endorse the view that such an action is always required to make retaliation actionable under Title VII.

Herrnreiter v. Chicago Housing Authority

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The 7th Circuit Court of Appeals' jurisdiction includes Illinois, Indiana and Wisconsin.

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