Possible Retaliation in Reassignment

In Pardo-Kronemann v. Donovan, No. 08-5155, 2010 WL 1508072 (D.C. Cir. Apr. 16, 2010), the U.S. Court of Appeals for the D.C. Circuit in a split decision reversed a lower court's decision and found that the question of whether an attorney's reassignment to a non-legal position was a retaliatory adverse action should have gone before a jury. Jose Pardo-Kronemann, an attorney who worked for the Department of Housing and Urban Development (HUD), brought suit alleging that HUD had unlawfully retaliated against him for his participation in prior EEO activity when it transferred him to a non-legal position, and declared him AWOL when he failed to report to that new position.

According to HUD, between three and six months after Pardo-Kronemann's return from a detail, HUD officials became worried that Pardo-Kronemann was not fulfilling his duties as a federal employee, and started to consider transferring him out of the Office of General Counsel (OGC). HUD officials made the decision final without consulting Pardo-Kronemann, and reassigned him to the Office of International Affairs (OIA), under a yet-to-be-rewritten position description that intentionally excluded legal work.

Pardo-Kronemann filed an EEO complaint alleging that both the reassignment and his subsequent placement on AWOL status constituted unlawful harassment. After Pardo-Kronemann had exhausted his administrative remedies before the EEOC, he filed suit in U.S. district court. The district court found that HUD had presented legitimate, non-discriminatory reasons for reassigning Pardo-Kronemann to a non-legal position, namely that it wished to place him in a position where he would be happier and more productive. The district court stressed that Pardo-Kronemann had not sought any legal work in the eight months following his return to OGC, and that no reasonable jury could find HUD's stated reason for the reassignment pretextual. The district court therefore granted judgment in favor of HUD.

Pardo-Kronemann appealed the district court's decision to the D.C. Circuit, which found several factors that could lead a jury to conclude that HUD's stated reason for reassigning Pardo-Kronemann was merely a pretext for discrimination. It found, for example, that Pardo-Kronemann's supervisor gave dubious and contradictory testimony about whether he knew of Pardo-Kronemann's EEO activity and whether that activity played a role in the decision to reassign him to a non-legal position. It also found that HUD transferred Pardo-Kronemann over the objections of his intended supervisor, to whom the agency never gave a reason for the transfer, and without consulting Pardo-Kronemann as to his preferences. Thus, the circuit court found that jury could reasonably conclude that HUD was not moving Pardo-Kronemann in order to make him happier and more productive, but rather in retaliation for his EEO activity.

The circuit court also examined whether Pardo-Kronemann's reassignment was an adverse action. HUD argued that the reassignment could not be adverse because Pardo-Kronemann suffered no change in salary, benefits or grade. Pardo-Kronemann argued on the other hand that his new position involved very different duties from his old position, which was enough to permit a reasonable jury to conclude that the reassignment was adverse. Most importantly, although his new position within OIA might have had some legal aspects, these represented a significant reduction to his legal duties and authority within the OGC. For example, as an OIA employee, Pardo-Kronemann could not issue legal documents upon which HUD could rely without the approval of the OGC. The circuit court therefore ruled that the district court had erred in granting judgment for HUD on the issue on the issue of Pardo-Kronemann's reassignment.

The circuit court then examined the facts surrounding Pardo-Kronemann's placement on AWOL status as a result of failing to properly seek approval for a leave request. Pardo-Kronemann's supervisor placed him on AWOL status because, "as a GS-14 attorney with over 12 years of government experience, he should have known how to apply for leave through the proper channels." The circuit court found that this was a legitimate reason for HUD's decision to charge Pardo-Kronemann AWOL and that Pardo-Kronemann had not presented any evidence sufficient for a reasonable jury to conclude that this reason was a pretext for retaliation. The circuit court concluded that there was no error in dismissing Pardo-Kronemann's claim that his placement on AWOL was retaliatory.

* This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman & Kaplan, P.C., go to https://www.passmanandkaplan.com/.

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