VIOLA LAIRD v. FAIRFAX COUNTY, VIRGINIA
No. 18-2511
United States Court of Appeals for the Fourth Circuit
October 23, 2020
PUBLISHED. Submitted: March 17, 2020. Before KEENAN, WYNN, and RICHARDSON, Circuit Judges. Affirmed by published opinion. Judge Richardson wrote the opinion, in which Judge Keenan and Judge Wynn joined. Judge Wynn wrote a concurring opinion.
Appeal from the United States District Court for the Eastern District of Virginia at Alexandria. Claude M. Hilton, Senior District Judge. (1:17-cv-01408-CMH-IDD)
Ellen K. Renaud, SWICK & SHAPIRO, P.C., Washington, D.C., for Appellant. Julia
RICHARDSON, Circuit Judge:
This suit involves allegations of discrimination and retaliation in violation of the Americans with Disabilities Act (“ADA“),
I. Background
A. Laird‘s employment at the County
Laird has worked for Fairfax County for more than twenty-five years. After starting out as a file clerk, Laird worked her way up to a Contract Specialist I in the County‘s Department of Procurement & Material Management.
In 2012, Laird informed her boss, Cathy Muse, about her multiple sclerosis diagnosis. Seeking a “reasonable accommodation” under the ADA, Laird formally asked Muse if she could begin unscheduled telework.1 Muse approved the request, authorizing Laird to telework “whenever she wanted to or needed to,” so long as Laird let Muse know.
J.A. 930, 968. Laird and Muse also “agreed that either party could revisit the accommodation at any time, with management assessing the accommodation‘s effectiveness on at least an annual basis.” J.A. 1212.
Over time, Muse found Laird‘s accommodation “untenable” given Laird‘s job. J.A. 931. Not only was it difficult for Muse to supervise Laird and ensure that she had enough work to do, but successful telework required planned absences. So the County modified Laird‘s accommodation, allowing her “to telework on two scheduled days per week . . . [or] 16 hours per week.” Id. And even then, the County required Laird to come into the office for scheduled meetings.
This new schedule did not satisfy Laird. So in December 2016, she filed a complaint with the Equal Employment Opportunity Commission. In her complaint, Laird alleged that the County discriminated against her because of her disability by failing to provide the initial, more generous, accommodations. Over several months, the parties engaged in settlement discussions, in which Laird “indicated that a lateral transfer could resolve [her] EEOC charge.” J.A. 1225.
The parties reached a settlement agreement in May 2017: “The County agree[d] to provide, and Laird agree[d] to accept, a lateral transfer within the County to the Fairfax County Police Department (FCPD) to the position of Buyer I, where she [would] maintain her pay grade, position
After Laird accepted the Settlement, she was transferred to the Police Department‘s Quartermaster Section, which is responsible for “uniforming and equipping about 2,000 members of the agency and also some non-members.” J.A. 43. It is “downstream in [the procurement] process” in that it “initiate[s] the need for something to be purchased and [ ] also receive[s] the goods when they come in.” J.A. 67.
Before Laird started, Police Major Edward O‘Carroll spoke with Muse about the transfer. O‘Carroll suggested that Laird work in the Quartermaster Section given Laird‘s familiarity with procurement. O‘Carroll knew that Laird could telework two days a week, and he met with Laird‘s new supervisor to discuss projects that would allow Laird to work remotely. As far as Laird‘s supervisor was concerned, Laird “was just an employee that [he] could assign to Quartermaster duties” and “[u]tilize as needed.” J.A. 347.
The Police Department worked to create Laird‘s new job description. Titled “Management Analyst I,” the position had the same pay grade as Laird‘s previous job. J.A. 147. According to the description, Laird was to “[a]ssist[] the Quartermaster Section with the acquisition, solicitation, negotiation, award, and contract administration for non-standard parts, inventory items, materials, public safety equipment, uniforms, and all mission critical supplies in direct support of the Fairfax County Police Department.” J.A. 1239.
After a little over a month on the job, Laird complained that she was not performing the duties in her job description because they were not done in the Quartermaster Section. The Police Department met with Laird to discuss the issue in August. The Department agreed to create a new position and job description for a “Buyer I.” J.A. 155–56, 162.
The County sent Laird the revised job description, which removed the duties that were not performed in the Quartermaster Section and renamed Laird‘s job title. But Laird refused to formally accept the position. To this day, Laird remains classified as a Department of Procurement & Material Management employee, although she works at the Police Department.
Since starting in the Quartermaster Section, Laird‘s work assignments have ranged from “general office duties that the rest of the team members are expected” to perform, J.A. 92, to completing “[a] higher-level requisition” for alcohol sensors and tint meters for police officers, J.A. 1078. Laird also researched a possible dry-cleaning contract, J.A. 90–91, 337, investigated high-density shelving for a new building, J.A. 329, “help[ed] out with the counting of inventory,” J.A. 368, and updated the police uniform guide, J.A. 105.
Even with these responsibilities, Laird claims that her “opportunity for future promotion” has been hurt by the transfer. J.A. 570. According to Laird, hers “is a thinkless job, just data entry . . . and checking for expiration dates and stuff like that.” J.A. 740. She finds the work “boring,” although she has no complaints about her relationship with her supervisor nor about how the Police Department has accommodated her disability requests. J.A. 647, 711, 740.
B. Laird‘s lawsuit
In December 2017, Laird sued the County in federal court. First, she alleged that the County unlawfully discriminated by demoting her because of her multiple
discrimination complaint. After the district court then granted the County‘s motion for summary judgment, Laird timely appealed. We have jurisdiction. See
II. Discussion
We review de novo the district court‘s summary judgment award. J.D. ex rel. Doherty v. Colonial Williamsburg Found., 925 F.3d 663, 669 (4th Cir. 2019). We will grant a movant‘s summary judgment motion when “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
We begin by reviewing the ADA‘s requirements. The statute prohibits employers from “discriminat[ing]” against “qualified individual[s] on the basis of disability.”
schedules, [and] reassignment to a vacant position.”
When a plaintiff alleges that her employer unlawfully discriminated or retaliated against her in violation of the ADA, she can prove her claim through direct and indirect evidence. Jacobs v. N.C. Admin. Off. of the Cts., 780 F.3d 562, 572, 577 (4th Cir. 2015). Otherwise, the plaintiff may proceed under the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973), a familiar way to resolve claims arising under federal employment discrimination laws, see Jacobs, 780 F.3d at 572, 577 (applying the framework to a claim under the ADA).
Applying the McDonnell Douglas framework to Laird‘s claims, the district court found that her case faltered at the first step—the prima facie case.4
explained that Laird failed to show that the County had taken an adverse action against her. Whether the record reasonably shows that Laird experienced an adverse action is the central issue on appeal.
What qualifies as an “adverse action” differs slightly depending on whether the claim is for unlawful discrimination or retaliation. For a discrimination claim, the plaintiff must show that her employer took an action that adversely “affect[ed] employment or alter[ed] the conditions of the workplace.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 62 (2006) (emphasis added). But for a retaliation claim, the plaintiff is not so limited since “[t]he scope of the antiretaliation provision extends beyond workplace-related or employment-related retaliatory acts and harm.” Id. at 67.5 However, although the scope of actions that qualify as an adverse action may differ, the required effect or adversity from such actions is described in very similar language for both claims. An alleged retaliatory action must be “materially adverse,” meaning that the plaintiff must show that the action “well might have dissuaded a reasonable worker from making or supporting a charge of
discrimination.” Id. at 68 (internal citations omitted). In other words, the harm must be a “‘significant’ detriment,” not “relatively insubstantial or ‘trivial.‘” Adams v. Anne Arundel Cty. Pub. Schs., 789 F.3d 422, 431 (4th Cir. 2015) (quoting Burlington, 548 U.S. at 68) (emphasis added). Similarly, for a discrimination claim, the adverse action must result in “some significant detrimental effect,” requiring more than a position that is “less appealing” to the plaintiff. Holland v. Wash. Homes, Inc., 487 F.3d 208, 219 (4th Cir. 2007) (emphasis added). Ultimately, retaliation claims and discrimination claims require fact-specific analysis that “depends on the particular circumstances of the case.” Adams, 789 F.3d at 431. Setting aside the difference in scope, both claims share a “common element“: an adverse action, meaning some action that results in some “‘significant’ detriment” to the employee. Id.; see Holland, 487 F.3d at 219.6
fails for a simple reason: If an employee voluntarily requests a transfer, and the employer agrees to it, there is no actionable adverse action. Simpson v. Borg-Warner Auto., Inc., 196 F.3d 873, 876 (7th Cir. 1999) (finding no “adverse action” where the employee requested a “downgrade“); see also Cherkaoui v. City of Quincy, 877 F.3d 14, 25 n.2 (1st Cir. 2017) (finding no “adverse employment action” when the plaintiff‘s assignment resulted from the defendant accommodating her request); Tusing v. Des Moines Indep. Cmty. Sch. Dist., 639 F.3d 507, 521 (8th Cir. 2011) (finding no “adverse action” when the evidence showed that the plaintiff “voluntarily” transferred to another job). As one of our sister circuits explained, “a transfer cannot be ‘because of a disability’ if it occurred as the result of an employee‘s own request.” Doe v. Dekalb Cty. Sch. Dist., 145 F.3d 1441, 1454 (11th Cir. 1998); see also Hooper v. State of Md., No. 94-1067, 1995 WL 8043, at *5 (4th Cir. Jan. 10, 1995) (finding no “adverse employment action” when the defendant accepted the plaintiff‘s “voluntary request to transfer“).
For instance, in Glymph v. Spartanburg Gen. Hosp., 783 F.2d 476, 477 (4th Cir. 1986), the plaintiff alleged that her employer discriminated against her because of her race by forcing her to resign from head nurse and work instead as a staff nurse. The district court rejected her claim because the plaintiff‘s move from head nurse to staff nurse was voluntary. See id. at 478. And we affirmed based on the hospital‘s defense that the plaintiff voluntarily resigned. Id. at 478–79; cf. Stone v. Univ. of Md. Med. Sys. Corp., 855 F.2d 167, 174 (4th Cir. 1988) (“If [an employee] resigned of his own free will even though prompted to do so by events set in motion by his employer, he relinquished his property interest voluntarily and thus cannot establish that the state ‘deprived’ him of it within the meaning of the due process clause.“).
Here, the County “agree[d] to provide, and Laird agree[d] to accept, a lateral transfer . . . to the position of Buyer I.” J.A. 751. To facilitate this agreement, Muse looked to transfer Laird‘s prior Contract Specialist I position to the Police Department and “reclassified [it] to a Buyer position because there [were] no Contract Specialists outside of” the Department of Procurement & Material Management. J.A. 938. Because all the Buyer I positions were full at the Police Department, the Police Department created a new job description, called “Management Analyst I,” in the Quartermaster Section for Laird. They did so by looking at positions “that were at the same pay grade as Contract[] Specialist I” and would “utilize skills she brought with her from” the Department of Procurement & Material Management. J.A. 147, 939. The
Thus, Laird voluntarily agreed—as part of her settlement—to laterally transfer to the Police Department as a “reasonable accommodation.” J.A. 751. And the County agreed to create a new position for her, even eventually agreeing to change the title of that position despite the internal confusion it might cause and thus going beyond what the ADA requires. See
* * *
In sum, a transfer is not an adverse action when it is voluntarily requested and agreed upon. That is what happened here: Laird requested a lateral transfer, and the County agreed to place her in a position with the same pay and similar responsibilities. Because Laird showed no adverse action, the district court correctly determined that she failed to make out a prima facie case of discrimination and retaliation.
AFFIRMED
VIOLA LAIRD v. FAIRFAX COUNTY, VIRGINIA
No. 18-2511
United States Court of Appeals for the Fourth Circuit
October 23, 2020
WYNN, Circuit Judge, concurring:
Because Laird clearly and unambiguously abandoned her constructive demotion claim on appeal, see Opening Br. at 27, I agree with the majority‘s conclusion that Laird failed to show an adverse action, thus dooming her ADA claims. As the majority correctly points out, “the Fourth Circuit has yet to decide” the question of whether a claim of constructive demotion is cognizable under the Americans with Disabilities Act. See Majority Op. at 9–10 n.7.
Today, we hold that “[i]f an employee voluntarily requests a transfer, and the employer agrees to it, there is no actionable adverse action.” Majority Op. at 10. But a request for a transfer is not “voluntary” if an employee is subject to work conditions sufficiently intolerable to force them to seek a transfer. Put more directly, a transfer is not voluntary if the employee was constructively demoted.
Each of our sister circuits to have faced the question of whether to recognize claims of constructive demotion has decided that such claims are cognizable. Those courts have viewed constructive demotion as a natural extension of constructive discharge, a well-established adverse action, and have applied an identical analysis for
standard for it); cf. Elmore v. Dep‘t of Transp., 421 F.3d 1339, 1342 (Fed. Cir. 2005) (recognizing constructive demotion in review of Merit Systems Protection Board claims); Diaz-Gandia v. Dapena-Thompson, 90 F.3d 609, 614 (1st Cir. 1996) (recognizing constructive demotion in a veterans‘-rights discrimination case); Clark v. Township of Falls, 890 F.2d 611, 618 (3d Cir. 1989) (recognizing constructive demotion under state employment statute).
We too have previously held that demotion may cause a constructive discharge. See Carter v. Ball, 33 F.3d 450, 459 (4th Cir. 1994) (“Demotion can constitute a constructive discharge, especially where the demotion is essentially a career-ending action or a harbinger of dismissal.“). Logic dictates that if a demotion can constitute a constructive discharge, then a constructive demotion can similarly constitute a constructive discharge. As such, the two should be reviewed under the same analysis. See Heiko v. Colombo Sav. Bank, F.S.B., 434 F.3d 249, 262 (4th Cir. 2006) (articulating a plaintiff‘s burden in proving constructive discharge).