Wheeler v. BNSF Railway Company
418 F. App'x 738
10th Cir.2011Background
- Wheeler, an African-American woman, began at SF (predecessor to BNSF) in 1977 as a freight car painter and BRC member.
- A 1988 agreement closed the Topeka Freight Painter Roster, preventing new seniority on that roster.
- In 2002-2005, BNSF transferred work to Lincoln; Wheeler and others could transfer or be furloughed, with seniority dovetailed to Lincoln.
- The April 2005 Agreement created a transfer mechanism among CBAs, with a priority order for vacancies across locations and CBAs.
- May 2008 Agreement opened two Lincoln Topeka painter-carman positions, placing Wheeler on the Topeka roster and then back on the Topeka facility, with related seniority rules.
- Wheeler alleged discriminatory treatment, including not receiving keys, a personal vehicle, or direct supervisor communication for assignments, after returning to Topeka.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether failure to transfer was an adverse action | Wheeler argues transfers were materially different and discriminative. | No adverse action: transfers were lateral, with no material changes. | Not an adverse employment action. |
| Whether post-return treatment was adverse action | Wheeler alleges ongoing unfavorable treatment after returning to Topeka. | Actions were mere inconveniences not materially adverse. | Not an adverse action. |
| Whether retaliation claims are actionable | Retaliation occurred for discrimination complaints (non-transfer and treatment). | No material adverse action linked to retaliation. | No materially adverse action supporting retaliation. |
| Whether mixed-motive theory applies | Claims under Title VII/§1981 allow mixed-motive recovery. | Mixed-motive not applicable without adverse action. | Mixed-motive not recognized here; no adverse action. |
Key Cases Cited
- Sanchez v. Denver Pub. Sch., 164 F.3d 527 (10th Cir. 1998) (purely lateral transfers not adverse actions)
- Dandy v. United Parcel Serv., Inc., 388 F.3d 263 (7th Cir. 2004) (lateral transfers with equal pay/conditions not adverse)
- LePique v. Hove, 217 F.3d 1012 (8th Cir. 2000) (lateral transfers not adverse actions)
- Burger v. Cent. Apartment Mgmt., Inc., 168 F.3d 875 (5th Cir. 1999) (rejection of pure lateral-transfer as adverse)
- Williams v. R.H. Donnelley Inc., 368 F.3d 123 (2d Cir. 2004) (subjective disappointment insufficient for adverse action)
- Clegg v. Arkansas Dep’t of Correction, 496 F.3d 922 (8th Cir. 2007) (refusal/inconvenience not materially adverse when remedied)
- Semsroth v. City of Wichita, 555 F.3d 1182 (10th Cir. 2009) (standard for materially adverse action; objective, case-specific test)
- Burlington N. & Santa Fe Ry. v. White, 548 U.S. 53 (2006) (retaliation standard requires materially adverse action)
- Reinhardt v. Albuquerque Pub. Sch. Bd. of Educ., 595 F.3d 1126 (10th Cir. 2010) (McDonnell Douglas framework for retaliation)
- Fye v. Okla. Corp. Comm’n, 516 F.3d 1217 (10th Cir. 2008) (mixed-motive framework in the Tenth Circuit)
- Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) (mixed-motive framework (legislatively superseded in some respects))