Lead Opinion
GUY, J., delivered the opinion of the court, in which BATCHELDER, J., joined.
GILMAN, J. (pp. 266-275), delivered a separate dissenting opinion.
OPINION
In this sexual harassment case, defendant Flying J, Inc. appeals from a jury verdict finding it liable for supervisory sexual harassment resulting in a tangible employment action. Flying J argues that there was no tangible employment action when it fired but then re-hired plaintiff Kyle Keeton the same day and when it laterally transferred Keeton to a different location. For the reasons explained below, we conclude that the termination was not a tangible employment action but that a reasonable jury could have decided that the transfer was a tangible employment action. Accordingly, we AFFIRM.
I.
Flying J operates travel plazas that cater to interstate travelers. Each plaza has a restaurant. Kyle Keeton applied to be an assistant restaurant manáger at a Flying J plaza. On his employment application, he stated that he was willing to relocate to other Flying J travel plazas. Keeton agreed because he believed that relocation would increase his chances for advancement. Keeton lived in Georgia when Flying J hired him, but he agreed to relocate to Tennessee for training.
After he completed his training in June of 2001, Flying J assigned Keeton to work as an associate manager at the Walton, Kentucky plaza. Flying J orally committed to keep Keeton at the Walton store for five years. Judy Harrell was the General Manager and his immediate supervisor. In September, Harrell began making several sexual advances toward Keeton, which he rejected.
Even though Keeton was not scheduled to work on December 4, 2001, Harrell called him at home and asked him to come to the restaurant so that she could speak to him in person. When Keeton arrived at the restaurant, Harrell told him that he was fired, explaining, “you’re not supporting me.” Prior to this meeting, Harrell had never disciplined Keeton formally or informally, had not criticized him at all during management meetings, and Keeton had no warning that his job was in jeopardy. After the meeting, an assistant manager escorted Keeton from the building.
Keeton returned home and phoned Jamal Abdalla. Abdalla had been the manager of the district encompassing Walton when Keeton was hired, but in December of 2001 Abdalla was the district manager of another district that included Cannonsburg, Kentucky, a town 120 miles away from Walton. Keeton told Abdalla about the termination and that he thought it resulted from sexual harassment. Abdalla called Keeton back about one-and-a-half hours later and told him that he could maintain his position as associate manager if he transferred to Cannonsburg. Later that same day, his termination was formally changed to a two-week suspension, then a one-week suspension, then “to however fast [Kеeton] could get over to Cannons-burg.” Abdalla told him that he was being “reinstated.” It took Keeton one week to move to Cannonsburg, and he was paid for that week. Keeton maintained the same title, responsibilities, salary, and benefits in Cannonsburg that he had in Walton. Keeton’s wife could not move with him to Cannonsburg because of a debilitating back problem that resulted in serious surgery. While he was working in Cannons-
Keeton filed this lawsuit against Flying J for sexual harassment, retaliation, and constructive discharge under Title VII and Kentucky Revised Statute Chapter 344. Keeton alleges that he suffered from sexual harassment resulting in a tangible employment action, or alternatively that he suffered from sexual harassment resulting in a hostile work environment. The district court rejected Flying J’s motion for summary judgment. The parties then consented to the jurisdiction of a magistrate judge for the jury trial. Flying J moved for judgment as a matter of law after Keeton presented his case to the jury and again after it presented its defense, but the magistrate judge denied the motions.
The jury found Flying J liable only for sexual harassment resulting in a tangible employment action. Following the format of the verdict form, the jury did not answer the interrogatory regarding sexual harassment with no tangible employment action. The jury answered “no” to the interrogatories asking if Flying J was liable for retaliation or if Keeton was constructively discharged. The jury awarded Keeton $15,000 in compensatory damages for emotional suffering, but with no back pay. Flying J renewed its motion for judgment as a matter of law on the grounds that Keeton had failed to produce evidence that he suffered a tangible employment action, but the court again denied the motion. Pursuant to 42 U.S.C. § 2000e-5, the trial court awarded Keeton attorney fees and costs of $36,573.86 as the prevailing party.
II.
We review de novo a district court’s denial of judgment as a matter of law. White v. Burlington N. & Santa Fe Ry. Co.,
Sexual harassment claims under the Kentucky Civil Rights Act and Title VII are analyzed in the same manner. Clark v. United Parcel Serv., Inc.,
The jury found that Harrell sexually harassed Keeton and that the harassment resulted in a tаngible employment action. Flying J argues on appeal that the termination was not a tangible employment action because it was too temporary, and that the transfer was not a tangible employment action because it was lateral.
A. The Termination
We have decided that when an employer imposes an employment action that would be an adverse employment action but then quickly reverses the action, the employee has not suffered an adverse employment action. Birch v. Cuyahoga County Probate Court,
Likewise, in Bowman we determined that a temporary removal of responsibilities was not an adverse action. There, the plaintiff had been an instructor and the Coordinator of Sports Studies at a university, and he alleged that his supervisor, a woman, sexually harassed him, ultimately resulting in her removing him as Coordinator.
B. The Transfer
Flying J maintains that a transfer without a change in status, benefits, or salary is not a tangible employment action. We have held that “reassignments without salary or work hour changes do not ordinarily constitute adverse employment decisions in employment discrimination claims.” Kocsis,
In this case, Keeton’s responsibilities in Cannonsburg were not different from his responsibilities in Walton. The only difference between the two positions was location, and Keeton did not present any evidence that Cannonsburg was objectively a worse location than Walton. Cannonsburg was, however, a substantial distance from Walton. Defendant correctly points out that Koscis and White focus on the differences in job duties and not other impacts on the employee. We have not precluded consideration of such factors as commuting distance or relocation, however. In Policastro v. Northwest Airlines, Inc.,
We held that the reassignment was not objectively intolerable and therefore was not a constructive discharge because “[t]he only aspect of her job that changed was that she was required to spend her time solely in Kentucky rather than splitting her time with the Cincinnati market. The distance Policastro had to travel did not
Flying J also argues that the transfer could not have been an adverse employment action for two additional reasons: Keeton had agreed to relocate on his employment application, and Keeton did not seek damages incurred by the transfer. Keeton’s employment application does not negate the transfer’s impact on Keeton because when he agreed to be transferred, he did so with the understanding that a transfer would be for advancement within the company and not as a result of unlawful sexual harassment. Moreover, defendant’s position that Keeton did not seek damages because of the transfer is disingenuous. It is based on Keeton’s trial testimony during cross-examination in response to the following question: “And you’re not claiming any damages, money
Notes
. The terms “tangible employment action” and “adverse employment action'-' are interchangeable. Bowman v. Shawnee State Univ.,
. Because of the nature of the argument offered in the dissent, it is important to emphasize that we are not holding that a lengthy or even burdensome commute is, per se, an adverse employment action. We merely hold that here, it was an appropriate factor for the jury to consider given the particular facts of this case.
Dissenting Opinion
dissenting.
Just last year, in White v. Burlington Northern & Santa Fe Railway Co.,
I believe that the majority has now muddied the waters that White had clarified, swayed by Keeton’s sympathetic family situation and isolated dicta from cases whose actual holdings contradict the conclusion that the majority reaches. Having injected Keeton’s particular personal circumstances into the adverse-employment-action analysis, the majority takes up an argument that Keeton himself had abandoned and proceeds to hold what no court in or outside of this circuit ever has: that a purely lateral transfer that carries with it no change in salary, benefits, responsibilities, or prestige is an adverse employment action when undertaken as a solution to a supervisor’s discriminatory conduct. Because I believe that White and the caselaw leading uр to it call for a result contrary to the one reached by the majority today, I would reverse the decision below and remand the case to the district court with instructions to grant judgment as a matter of law in favor of Flying J. I therefore respectfully dissent.
I. TERMINATION AND IMMEDIATE REINSTATEMENT
I agree with the majority that an employee who is illegally discharged, but who secures immediate reinstatement without the loss of any benefits, has not suffered an “adverse employment action” for purposes of the federal anti-discrimination laws. Maj. Op. at 263. Starting with the decision in Kauffman v. Allied Signal, Inc.,
Our decision in Bowman v. Shawnee State University,
The majority, therefore, correctly concludes that Boiuman disposes of Keeton’s argument that a temporary termination, even if followed by immediate reinstatement, comprises an adverse employment action. Our unanimous conclusion on this point should, in my opinion,, end our review of the present case because the “termination theory” of liability is the only one that Keeton advanced in his appellate brief. See Radvansky v. City of Olmsted Falls,
But instead of deciding the present case on “the best and narrowest ground available,” Air Courier Conference v. American Postal Workers Union,
II. LATERAL TRANSFER
I begin with this court’s recent en banc decision in White, where the court reaffirmed that, “[i]n this circuit, Kocsis [
Kocsis provides guidance beyond the Supreme Court’s brief description in Burlington Industries. The Kocsis court looked to cases from the Seventh Circuit and joined that circuit in concluding that victims of prohibited discrimination must prove that they have “suffered a materially adverse change in the terms or conditions of [their] employment because of [their] employer’s conduct.” Koscis,
The Kocsis court borrowed extensively from the Seventh Circuit’s decision in Spring. There, a school principal was transferred to a new position farther away from her home. She sued the school board under the Age Discrimination in Employment Act (ADEA), alleging that she had been transferred on account of her age. Spring,
Another ADEA case in the educational area makes the same point. In Sanchez v. Denver Public Schools,
Similarly, the 120-mile transfer in the present case did not alter the terms or conditions of Keeton’s employment at Flying J. He retained his status and responsibilities as an assistant manager and continued to enjoy the same salary and benefits that he had received prior to the transfer. The new job was, as the magistrate judge described it, “virtually identical to his [previous] position in Walton, Kentucky.” Because the transfer left Keeton’s “employment status” unaltered, Burlington Industries,
What must drive the mаjority’s contrary conclusion, then, is one of two theories, both of which are unsupported by existing law. One theory rests on the fact that the distance of Keeton’s transfer was greater than that of the transfers in cases like Spring and Sanchez, cases the majority does not even cite. The second theory stems from the majority’s apparent belief that Flying J’s solution to the discriminatory conduct of Keeton’s supervisor, combined with Keeton’s own personal circumstances, convert an otherwise permissible employment decision into an adverse one.
A. A longer commute does not constitute a material change in the terms or conditions of employment
First, the principle that the majority appears to adopt — that employment decisions increasing commute time can, in and of themselves, be materially adverse if undertaken as a solution to a supervisor’s discriminatory conduct — has little basis in our caselaw. As the majority acknowledges, none of our cases has ever found that increased commute time, standing alone, transforms an otherwise lawful lateral transfer into an adverse employment action.
This court, for example, affirmed a district court opinion holding that an increase of 20 minutes in commute time amounted to neither a constructive discharge nor an adverse employment action. Darnell v. Campbell County Fiscal Court,
Two unpublished cases from this circuit add to the steady stream оf authorities holding that increased travel time is insufficient to render a transfer an adverse employment action. One is Nelson v. General Electric Company,
Beyond lacking support in the caselaw, the majority’s disposition suffers from subjective line-drawing problems. This disposition is inconsistent with prior cases that examine the effect of an employment decision on a “reasonable person.” See Policastro,
In the face of the consistent and compelling authorities cited above, the majority relies on a single sentence in Policastro stating that courts can consider increased commuting distance as “a factor in determining whether a constructive discharge has occurred.” Maj. Op. at 264 (citing Policastro,
This is not to say that lateral geographic transfers can never amount to a constructive discharge and therefore satisfy the adverse-employment-action requirement. Assume, for example, a hypothetical case where the employer repeatedly ships its employee to different locations, ordering another transfer each time the employee settles in at the new location. A jury under such circumstances might reasonably conclude that the continuous transfers created an “objectively intolerable” working situation. But this hypothetical neither bolsters the majority’s analysis nor helps Keeton, because his constructive-discharge theory was specifically rejected by the jury.
The majority next resorts to the general statement, made in yet another ease finding no adverse employment action, that this transfer falls into the category of “other indices that might be unique to a particular situation.” Maj. Op. at 265 (citing Hollins v. Atl. Co.,
In Kocsis, the quoted language appeared at the end of a list of employment actions short of termination that would nevertheless qualify as adverse. Because that list, like most, was not meant to be exhaustive, the court added the category of “other indices ... unique to a particular situation,” a type of catch-all meant to include employment decisions that, although not universally recognized as negative, would likely be viewed as adverse by an employee in a particular setting. See, e.g., Molnar v. Booth,
What, then, are the “other indices” unique to Keeton’s situation that convert an otherwise legitimate lateral transfer into an adverse employment action? The majority’s discussion seems to turn on three factors: (1) that Keeton’s transfer was a direct result of unlawful discriminatory conduct on the part of his supervisor; (2) that Keeton’s wife suffered from a back problem that prevented her from accompanying him to Cannonsburg; and (3) that Keeton chose to maintain two residences, one in each town.
The first factor, however, is common to all cases brought under federal anti-discrimination laws. That is, all plaintiffs in sexual harassment suits brought under Title VII necessarily must allege that their employers subjected them to discrimination “because of’ their sex. See 42 U.S.C. § 2000e-2a(1) (2000) (prohibiting discrimination “because of [an] individual’s race, color, religion, sex, or national origin”); Oncale v. Sundowner Offshore Services, Inc.,
But that distinction is really no difference at all, because a finding of no adverse employment action typically requires the court to assume the truth of the plaintiffs other allegations. See, e.g. Kocsis,
The other two factors certainly establish that the transfer was inconvenient to Kee-ton’s personal life, but our cases make clear that “mere inconvenience” is not enough. Instead, the employer’s decision must have a materially adverse effect on the terms and conditions of the person’s employment. Kocsis,
I believe that the majority’s failure to provide any guidance beyond the facts of the present case is unsatisfactory because today’s decision, if followed, will require employers to examine the personal characteristics and living situations of each affected employee before taking any action that might even marginally change that
B. A plaintiffs subjective preferences and characteristics should not be considered in the adverse-employment-action inquiry
This court has consistently applied an objective standard in evaluating both the adverse-employment-action prong of the anti-discrimination laws and claims of constructive discharge. See, e.g., Strouss v. Mich Dep’t of Corr.,
The majority recognizes that Keeton agreed to relocate in his initial job application, that he agreed to the transfer to Cannonsburg when Abdalla offered it to him, and that “Keeton did not present any evidence that Cannonsburg was objectively a worse location than Walton.” Maj. Op. at 264. Notwithstanding these facts, the majority concludes that a reasonable person who has twice agreed to relocate suffers a materially adverse change in the terms and conditions of his employment when a geographic, laterаl transfer takes place. This is so, the majority says, because Keeton originally agreed to relocate “for advancement within the company and not as a result of unlawful sexual harassment.” Maj. Op. at 265. What renders the lateral transfer here adverse in the eyes of the majority, then, are not the objective effects of the transfer, but rather Keeton’s subjective expectations as to the reasons for being transferred and the particular circumstances of his family life. This subjective analysis stands in stark contrast to the objective standard normally used, which examines the employment decision from the point of view of a reasonable person, not that of a person who expected to be transferred for only one reason and whose spouse is unable to move.
The majority’s failure to acknowledge the subjective nature of its analysis is not surprising, given that our sister circuits have uniformly endorsed an оbjective standard for analyzing potentially adverse employment actions. See Doe v. Dekalb County Sch. Dist.,
would create an odd situаtion in which a plaintiff could use the McDonnell Douglas test not only to avoid having to prove directly his employer’s discriminatory intent, but also to force his employer to either disprove the plaintiffs own subjective feelings or concede an element of the plaintiff’s prima facie case.
Doe,
Applying an objective standard, numerous decisions have made explicit what was implicit as far back as Spring — that, in Judge Posner’s words, “a purely lateral transfer, that is, a transfer that does not involve a demotion in form or substance, cannot rise to the level of a materially adverse employment action.” Williams v. Bristol-Myers Squibb Co.,
In the end, the majority simply fails to demonstrate how Keeton’s transfer to Cannonsburg, a move in which he acquiesced, was “objectively equivalent” to a demotion. See Doe,
C. The majority’s opinion undermines the policies underlying Title VII
The policies underlying recent decisions in this area by the Supreme Court also weigh strongly in favor of reversal. In defining the various theories of liability under Title VII and the defenses thereto, the Supreme Court has sought to encourage employers to implement internal mechanisms for weeding out discriminato
Here, however, the majority is essentially telling Flying J that only one course of action in response to Keeton’s allegations would have permitted it to avoid liability- — • the firing or transferring of Judy Harrell, Keeton’s supervisor. Instead, Flying J acted promptly on Keeton’s complaint, knowing that it cоuld not keep Keeton and Harrell at the same location. But, as the majority holds today, Flying J was unable to avoid liability by transferring Keeton, despite his expressed willingness to move to the district managed by Abdalla. The only solution, therefore, would have been to fire or transfer Harrell, the store manager, a move that would have required identifying another location with a managerial vacancy or displacing another worker. Nothing in Title VII commands that a company’s options for handling discriminatory conduct be so limited.
Outside of the broader policy implications of the majority’s reasoning, I believe that today’s decision sends the wrong message to employers. Flying J acted expeditiously in responding to allegations of sexual harassment against one of its employees, quickly corrected a supervisor’s unlawful abuse of power, and immediately reinstated the employee who was wronged. This company, and othеrs like it, must continually monitor and correct discriminatory conduct on the part of their supervisory employees. Unfortunately, today’s decision both reduces companies’ incentives to combat discriminatory behavior and limits the solutions that those companies can lawfully implement in the face of such behavior. When combined with a lack of support in the decisions of this or any other court, these pernicious policy consequences counsel against reaching the result that the majority does today.
III. CONCLUSION
Keeton is undoubtedly a sympathetic plaintiff, and the majority’s desire to reach beyond Keeton’s own arguments and find a basis for affording him relief is therefore understandable. Judicial restraint, however, cautions against adopting a position whose merits have not been advocated even by the party seeking relief. See, e.g., McCleskey v. Zant,
Instead of breaking new ground, as the majority does, I would simply adhere to the existing caselaw and reaffirm the conclusion that those cases universally reach- — that geographic inconvenience alone does not convert a purely lateral