If it is true that judges in employment discrimination cases should not function as “super-personnel boards,” judging the acceptability of an employer’s reasons/excuses for its decisions, it is equally true that judges are not duly-constituted petit juries empowered to decide whether an employer’s actions are “materially adverse.” Where facts are contested, Congress assigned that task to a sworn panel of citizen-civilians.
In Buboltz v. Residential Advantages, Inc., No. 07-2065 (8th Cir. Apr. 18, 2008), the panel reviewed summary judgment for an employer — which provided residential care for the disabled — that reduced the plaintiff’s duties (to dispense medication), required her to work with another employee and began to make her work every other weekend. The concern was that her disability (legal blindness) interfered with her ability to read papers or observe the patient. The employee contended that she had been able to perform these same functions for the past five years of her employment, and that her immediate supervisor agreed that there were no worries. Frustrated by the new constraints (and with receiving a performance warning to boot), the employee quit.
The panel majority opinion (signed by Judge Beam for himself and Judge Gruender) agreed with the district court that none of the three conditions set out above rose to an “adverse employment action.”
“Buboltz’ first contention, that RAI’s decision to remove two of her essential functions constituted an adverse action, fails. RAI’s decision to remove Buboltz’ duty of administering medicine did not have a material disadvantage to Buboltz, as it comprised little of her time and did not likely hamper her future at RAI. RAI’s decision to require Buboltz not to work alone with residents was also not an adverse action. Although Buboltz argues this restriction prohibited her from providing direct care to the residents, she fails to show what direct care she was precluded from providing. Indeed, Buboltz admits that this restriction was superfluous when the home was triple staffed, which it almost always was. Moreover, an alteration of job responsibilities, like the elimination of the duty to dispense medications or work alone with residents, does not constitute an adverse action.” [Foot notes omitted]
The court also held that the weekend shifts were neither adverse (it applied across-the-board) nor connected in any way to her disability.
Judge Bye, in dissent, critcized the majority for arrogating the fact-finding mission to itself:
“It was error for the district court to determine RAI did not eliminate essential functions of Buboltz’s job and thus Buboltz did not suffer an adverse employment action; such a determination is the province of the jury. The DSP written job description includes taking care of the residents’ medical needs and requires ability to ‘make decisions and complete tasks with little or no supervision.’ Appellant App. at 16. Buboltz argues one of the most important responsibilities of a DSP is to administer medication; if no DSPs administered medication, the medical care of the residents would be greatly compromised. At least three other RAI employees testified medication administration and working alone with residents were essential duties and they believed the elimination of these responsibilities was materially adverse, unfair, unwarranted, and tantamount to accusing Buboltz of incompetence. Id. at 175, 182-84, 194, 197-98. Furthermore, with only two or three DSPs present on a given shift, there are a limited number of employees available to perform those functions Buboltz was prohibited from performing, especially when one DSP takes a break, or runs an errand with other residents.”
Indeed, Judge Bye would have gone the extra step and found that the extra conditions (at least, based on the plaintiff’s version of the record) were so confining that they constituted grounds for constructive discharge:
“Buboltz provided testimony from her coworkers explaining how RAI’s restriction prevented her from engaging in direct care as she had previously. Patricia Nelson testified Buboltz used to take residents to basketball games, concerts, and would often spend individual time with residents. Id. at 190. Cathy Galvin, RAI Human Resources Generalist, stated Buboltz would no longer be able to take the residents grocery shopping or bowling. Id. at 97. Buboltz testified there were occasions when a DSP would need to stay home with a client who did not desire to participate in an outing with the others. Id. at 10. She would no longer be able to perform this function. Buboltz argues the restriction prevented her from providing direct care to residents such as bathing them, assisting them while going to the bathroom, or providing other hygienic care, due to space limitations in the bathroom. Appellant Reply Br. at 7-8. She also argued the restrictions prevented her from doing typical one-on-one activities such as taking residents on a walk or even playing a game with them in a separate room. Id.”
The fault in many such determinations on summary judgment — judges weighing whether an employment action was “materially adverse” — is that they focus on the employee in isolation and do not take the dynamics of workplace very seriously. An employee who took her responsiblities as a caregiver seriously would find conditions like this demeaning, and this is not even taking into account how her co-workers would treat her when they inevitably have to pick up more of her work.