Employee Reassignment Due To Poor Performance Not Adverse Action

Bernadette Hunton
Bernadette Hunton
09/08/2021

From time to time I get questions from employers about the legal risks associated with transfer or reassignment of a poor performing employee.  Maybe a contract prevents immediate termination, or the current office dynamic simply isn’t good.  The relationship with the employee is on a rapid decline and the employer wants to know- will the transfer increase the risk of liability for an employment discrimination claim?

As lawyers often say to our clients, it depends. In the recently decided case, Carson- Johnson v. Balt. City Police Dep’t, No. BPG-18-3064 (D. Md. 9/2/21), a local federal court held that an employee’s reassignment did not constitute an adverse action, as required to support such a claim.

The case involved a female African American employee who worked for Baltimore City Police Department (BCPD).  In August 2015, the employee failed to attend a meeting about an upcoming “high profile” court case a/k/a the Freddie Gray trial.  Two days later, BCPD transferred the employee from her post at the Training Academy to Headquarters Security for unsatisfactory performance related to the missed meeting.

The employee sued shortly thereafter, claiming that her transfer was both discrimination and retaliation for a previously filed complaint.  The U.S. District Court for the District of Maryland granted summary judgment to BCPD on all claims, concluding that the employee did not suffer any adverse employment action, even under the more lenient standard applied to retaliation claims.

Significantly, there was no dispute that the employee failed to suffer any loss in pay or benefits.  As for the employee’s arguments about loss of prestige due to transfer to a location where “screwups are put” the court found that there was no objective evidence to support the employee’s own views of the situation.

The case is a good reminder for Maryland employers that not all reassignments are created equal. Such moves can be an effective tool to address problems in the workplace and, when executed carefully, need not result in increased risk of liability for claims of employment discrimination.

 

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