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Beyer v. County of Nassau, No. 06-4930 (2d Cir. Apr. 23, 2008); Webb-Edwards v. Orange County Sheriff, No. 07-12599 (11th Cir. Apr. 22, 2008)

| Apr 23, 2008 | Daily Developments in EEO Law |

Two circuits — reviewing cases that, coincidently, both involve women detectives — take different stances on whether denial of a transfer constitutes an “adverse employment action” chargable under Title VII. The Second Circuit essentially trusts the employees’ view of the prestige and importance of their own jobs. The Eleventh Circuit, meanwhile, takes a markedly paternalistic view of what’s best for the employee.

Beyer v. County of Nassau, No. 06-4930 (2d Cir. Apr. 23, 2008):  Detective Beyer arrived at law enforcement with a strong scientific background (including an MA in forensic science), but the county was increasingly outsourcing the serology work that she performed.  So she requested a transfer to the Latent Fingerprint Section (“LFS”), three times in three years, but was passed over twice in favor of men (the third time, the department didn’t even bother to process her paperwork).  Over time, through a supposedly competitive process, four men and no women moved into LFS.  Detective Beyer wound up assigned to routine squad work (arrests, taking statements, interviewing witnesses and complainants, processing paperwork) that used none of her scientific background.

Although the district court held that denial of a transfer to LFS was not an “adverse employment action,” the Second Circuit found a genuine issue of material fact.  Although the serology department demanded greater scientific skills, the record (read in Beyer’s favor) showed that work was in decline.  Meanwhile, the record “suggests that, for an officer pursuing a career in police forensics, being placed in the LFS was both highly desirable and objectively preferable to working in the Serology Section: (1) at least seventeen people applied for the November 2000 posting, and the supervisor of the unit viewed the jobs as a way of ‘tak[ing] care of the guys’ who had done ‘the right thing’; (2) assignment to the LFS entailed using up-to-date equipment and learning new skills; and (3) none of the Department’s latent fingerprint work was being outsourced.”

In summary, and I really like this formula, “Title VII gives employees the statutory right to compete on an equal basis without regard to gender for anything worth competing over.”

But woebetide the would-be Detective Beyers if they happen to live in the Eleventh Circuit . . .

Webb-Edwards v. Orange County Sheriff’s Office, No. 07-12599 (11th Cir. Apr. 22, 2008):  This case involved both a straight-forward hostile work environment claim (dismissed on summary judgment, affirmed on appeal, and not discussed here), and a sex discrimination claim about denial of an assignment.  The latter claim went all the way through a jury trial, and culminated in a $500,000 verdict for the plaintiff, only to have it yanked back on a Rule 50 judgment as a matter of law.

In this case, Webb-Edwards sought transfer as a school Resource Officer (“SRO”) to a facility — Gateway Middle school — notorious as a physically dangerous environment.  At Gateway, “a majority of the students . . . have ‘criminal charges’ and psychological or behavioral problems. A majority are also on medication.” Though Webb-Edwards qualified for the transfer, based on her ranking before the transfer review board, her superior officer countermanded her request.  Instead, she was offered a transfer to Conway Middle school, a more traditional and safer placement.  Webb-Edwards refused the post and shortly thereafter resigned from the force.

On appeal, the issue was whether the district court erred in holding that denial of a transfer was not materially adverse.  The paternalism lurking under the surface occasionally seeped through at trial:

“Chief Hollomon [the decision maker] testified that he did not believe he discriminated against Ms. Webb-Edwards bypassing her from being placed as a SRO at Gateway Middle school. He described his motivation as follows:

“‘I have no personal agenda here. My consideration is to put the best qualified person in a position. Gateway Middle school is a horrible place to work. I tried to put the person that I thought would probably go there, do a good job and more than anything else be safe. My intention really was to protect Elaine. I didn’t think that was a good place to put her. I think other people- like I said, the physically imposing, tactically sound people are better. The way I look at things is this: Officer safety first, last, and always. And that’s how I make my decisions.'”

*   *   *   *

“Chief Hollomon testified that he deviated from the eligibility ranking submitted by the transfer review board because he believed that she was not qualified to serve as a SRO at Gateway Middle school because of its ‘very unique situation’ when compared to other schools. He stated that she did not have the ‘physical stature and tactical background and training’ to handle fourteen to twenty-two year-old students with severe behavioral and medical problems as well as criminal records for violent crimes. He testified that forty-three students had been arrested on the Gateway Middle school campus for battery on a law enforcement officer. In his opinion, Ms. Webb-Edwards would not have been safe as the lone SRO at Gateway Middle school. He testified that his sole intention in deviating from the transfer ranking was to ‘protect Elaine [Webb-Edwards].'”

On appeal, the panel affirmed the district court’s judgment as a matter of law.  It affirmed the holding that the department’s cancellation of the transfer that Webb-Edwards so wanted did not, as a matter of law, rise to an adverse employment action. Presumably, this is because a reasonable (one might even say “sensible”) person would rather not transfer into such hazardous duty.  Presumably, she should have been satisfied with the alternative assignment offered her: “In fact, she was offered a transfer to Conway Middle school approximately fifteen days after she was notified that she would not be transferred to Gateway Middle school. Thus, she refused to accept a transfer to a school that would have provided her with a safe environment and the ability to teach and coach an athletic team.”

What the opinion fails to reveal — and what tips us off that there’s something rotten in this case — is why Webb-Edwards was so determined to go to Gateway.  Not only did she survive a competitive process to get the offer, not only did she accept the offer, but when the offer was revoked she became physically ill with grief.  She turned down the lighter duty as well.  Wouldn’t you want to know why she valued this job so much that she’d walk away from her career rather than suffer the shame of losing that post? 

I’m supposing that the jury — who awarded, remember, a half-million dollars! — were the only ones in the civil-justice system who got it.  Webb-Edwards was cut out for this job. For whatever reason, it was her calling.  Many school teachers like ordinary classrooms, but some want to teach the disabled.  And for the department to take the offer away because her superior officer though she was too small and demure to work there, . . . . well, this seems the very reason that we have Title VII — to end stereotyping, to allow people to reach the heights or depths they desire to reach.

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