Temporary Demotion States Cause of Action
In Bryant v. Leavitt, Civil Action No. 05-250, decided on February 22, 2007, the U.S. District Court for the District of Columbia denied the Department of Health and Human Services’ motion for summary judgment on age and race discrimination claims. The plaintiff was a 62 year-old African American man who has been employed by HHS for approximately 30 years. From March 2001 until October 2002, he served as director of the Office of Grants Management (OGM) as a GS-15 supervisor. He was thereafter transferred to a position he characterizes as “unclassified” and which he claims involved the work of a GS-13 employee. The claims arise out of this alleged temporary demotion.
In late 2002, the plaintiff’s supervisor was replaced by a 54 year-old white male. According to the court, the new supervisor attacked the plaintiff’s performance, which was rated “outstanding” by the plaintiff’s prior supervisor, treated plaintiff like a child, yelled at plaintiff, refused to provide plaintiff the requisite support staff to do his job, and made several demeaning comments about plaintiff’s age, including stating that plaintiff was “part of the older generation” and was “too old to have children in high school.” In April 2003, the supervisor reassigned the plaintiff to a position as “grants officer.” The plaintiff contends his new position had “unclassified duties” at the GS-13 level. In October 2003, HHS detailed plaintiff to the deputy assistant secretary’s office and named plaintiff the associate commissioner of systems. In November 2003, the plaintiff was permanently assigned to this position, which he admits is more prestigious than his earlier position as director of OGM, but which was non-supervisory. The plaintiff claims that it took HHS seven months, from April to November 2003, to assign him to a GS-15-level position.
HHS moved for summary judgment on the ground that the plaintiff failed to establish a prima facie case of discrimination. HHS alleged that he did not suffer an adverse employment action but instead merely raised “a series of personnel grievances.” To establish a prima facie case of discrimination, a plaintiff must set forth facts demonstrating that he suffered an adverse employment action. The judge pointed out that in the D.C. Circuit, adverse actions are those that result in “changes such as demotion, undesirable reassignment, or the loss of a bonus,” but not those that impose “purely subjective harms, such as dissatisfaction or humiliation.” The judge then went on to note that temporary changes or a decrease in the quality of responsibilities, including curtailing of supervisory duties, may constitute an adverse employment action even in the absence of “reduction in grade, pay or benefits.”
The judge denied summary judgment, holding that the plaintiff’s evidence that he was reassigned to a position in which he had no supervisory authority, in which he lacked signature authority, and in which he was doing work typically done by GS-13s, “constitutes more than the ‘[m]ere idiosyncrasies of personal preference,'” and that a “reasonable trier of fact could conclude that the plaintiff has suffered objectively tangible harm.” The judge also found genuine issues of material fact concerning whether HHS’s reasons for the actions were a pretext for discrimination, noting that HHS proffered the supervisor’s subjective impressions of the plaintiff’s performance as the rationale for the demotion. The judge held that while “employers may of course take subjective considerations into account in their employment decisions, courts traditionally treat explanations that rely heavily on subjective considerations with caution.” The judge ordered that a jury hear the claims. This case points out that a temporary demotion to a lower level position may constitute an adverse employment action under the civil rights acts.
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