Labor & Employment Law

Personal preference not enough to establish a material adverse action

Semsroth v City of Wichita, ___F.3d___(10th Cir. February 17, 2009), is yet another decision struggling with what an adverse employment action is under Title VII. The 10th held that 3 plaintiff police officers asserting Title VII reprisal claims failed to show they suffered a material adverse action.

The first officer sought a transfer that was initially denied, then granted and denied again after the officer filed an unrelated sex bias claim. It was finally granted after she filed a grievance. Fatal to her claim was the fact that she offered nothing but her personal preference to distinguish the two jobs, failing to show an objective advantage to the job she wanted. In any event, the fact that she ultimately got the job with no delay in the starting date negates the force of objective evidence in the material-adversity analysis.

The second officer's assignment to a different light-duty job than the one she requested also failed the material-adversity analysis for lack of evidence that her desired position was objectively preferable. She offered only evidence of her subjective desire for the job.

The third officer could not get beyond the same stage because the voluntary nature of her submission to a fitness-for-duty exam "drain[ed] the incident of any material adversity," concluded the court.

Mitchell H. Rubinstein

Full post as published by New York Public Personnel Law on March 24, 2009 (boomark / email).