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Employers Beware: When A Lateral Transfer of an Employee Constitutes An Adverse Employment Action

A Massachusetts Court recently decided that a lateral transfer of an employee could be considered an "adverse employment action" for the purposes of a retaliation claim despite no wage or benefits cuts. In Kelley v. Commonwealth, et al., the Plaintiff worked as a clerk for the Department of Conservation and Recreation's sign shop at a location near her home. In 2006, a co-worker and a supervisor engaged in a romantic relationship, which made the Plaintiff uncomfortable and led to the co-worker receiving favorable treatment in the workplace. On January 19, 2006, the Plaintiff reported to a supervisor her discomfort and how the relationship was making it hard for her to do her job. 

Several days later, DCR's sexual harassment team appeared unannounced at the sign shop to interview the Plaintiff about her complaint. The supervisor in question was ordered to stay away from the shop while the investigation was conducted, despite this order, he continued to be seen at the shop. Notably, the Plaintiff's co-worker received an email summary of Plaintiff's complaint despite its confidential nature. Copies of the email appeared in a number of places throughout the shop, upsetting the Plaintiff to the point where she took a sick leave. The DCR investigation found that the supervisor and co-worker engaged in conduct that was inappropriate and detrimental to the workplace. When the Plaintiff returned to work she was transferred to a different position further away from her home that required skills she did not possess. The Plaintiff felt that she was being forced out so she initiated a civil action for retaliation under G.L. c. 151B.

At a jury trial, the jury found that DCR had transferred the Plaintiff in retaliation of her complaint and awarded her $500,000 in emotional distress damages as well as $250,000 in punitive damages. DCR filed a motion for a judgment notwithstanding the verdict. DCR argued that the move was not a demotion, and therefore, was not a materially adverse employment action necessary to prove a retaliation claim. The Court disagreed.

The Court considered the totality of the circumstances surrounding the Plaintiff's transfer. The Court ruled, "the totality of the circumstances surrounding transfer as revealed by the evidence amply supports the jury's decision that her transfer amounted to an adverse employment action motivated by retaliatory animus." In reaching the ruling, the Court pointed to evidence that the Plaintiff's new position required greater skills, as well as evidence of a longer commute and different schedule. Therefore, the Court upheld the jury's award.

The Kelley case stands as a strong reminder to employers that a lateral transfer could be an adverse employment action especially if the employee is not qualified for the new position. Employers must be cautious when making changes to an employee's job if the employee has engaged in protective activities or engaged in some form of whistleblowing. Simply keeping an employee at the same salary and benefits does not necessarily prevent liability for an employer.

Contact Attorney Mucci, an experienced employment lawyer, if you have questions about adverse employment actions and claims of retaliation.

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