4th Circuit revives SSA disability bias suit

By Nate Delesline III

A jury should decide if an employee’s reassignment to a position with the same pay grade, salary and benefits but without supervisory responsibilities was an adverse employment action, the 4th U.S. Circuit Court of Appeals has found.

Plaintiff Mary Herkert claimed her employer, the Social Security Administration, failed to reasonably accommodate her disability by denying her request for scheduled telework, and that her job reassignment was retaliatory and discriminatory.

Finding that the plaintiff could not show an adverse employment action since her reassignment did not represent a “significant” employment status change, the trial judge granted summary judgment to the named defendant, Frank Bisignano, commissioner of the Social Security Administration.

But a three-judge panel of the 4th Circuit remanded the case for further proceedings.

Writing for the panel, Judge Pamela Harris said the U.S. Supreme Court in Muldrow v. City of St. Louis clarified “that a plaintiff like Herkert, challenging a job transfer as discriminatory, need not show a ‘significant’ change in working conditions to establish an adverse employment action.”

Senior Judge Barbara Milano Keenan and Judge Roger L. Gregory joined in the opinion.

“In light of Muldrow, we cannot say, as a matter of law, that Herkert’s reassignment was insufficiently ‘adverse’ to support her claims,” Harris wrote. “And although the district court also relied on the purportedly ‘voluntary’ nature of Herkert’s reassignment to reject her claims, we think genuine factual disputes preclude summary judgment on that issue, too.”

The 20-page opinion is Herkert v. Bisignano.

Retaliation standard

Brian Muse, an attorney with Sands Anderson in Williamsburg, Virginia, pointed to several noteworthy aspects in Herkert.

One is the 4th Circuit “made clear that the standard for retaliation claims remains unchanged,” he said.

By applying Muldrow — a Title VII matter — to a case under the Rehabilitation Act of 1973, 29 U.S.C. §791, Muse said it appears the 4th Circuit “intends to apply the decision broadly to at least discrimination claims under the ADA/Rehabilitation Act.”

The Herkert ruling likely means that, at least in the 4th Circuit, Muldrow won’t be limited to employment cases involving reassignments or transfers.

Elizabeth Payne-Maddalena, an attorney with Berenzweig Leonard in McLean, Virginia, said Herkert applies the Muldrow standard.

“In doing so, the 4th Circuit cautioned not to interpret Herkert as meaning that loss of supervisory responsibility will always constitute an adverse employment action, and this analysis needs to be looked at on a case-by-case basis,” she said.

Payne-Maddalena added that the panel “underscored this by noting that, in some cases, some employees may even welcome the removal of burdensome supervisory duties.”

Muse said Herkert matters for employers, too, as it drives home the importance of proper and comprehensive documentation related to the reasons for employment decisions.

Payne-Maddalena concurred.

First, she said, “employers who are facing a reasonable accommodation request under the ADA should be careful to make sure they are not only meeting the ADA’s interactive process requirements, but that a resulting change in that employee’s position — such as a reassignment or even a transfer — does not constitute a disadvantageous change in employment under the current Muldrow–Herkert analysis.”

Second, she said, Herkert “shows that telework accommodation requests continue to be a hot topic under the ADA, and this will likely only continue as more companies implement mandatory [return to office].”

Muse also agreed that the court applied Muldrow in the Herkert decision.

“Ultimately, I believe that the biggest takeaway is that it likely is going to be harder for employers to obtain summary judgment in many employment discrimination cases,” Muse said. “While the Herkert court indicated that in some cases a transfer or reassignment of responsibilities, such as the removal of supervisory responsibilities, may not constitute ‘some disadvantageous change,’ this was a fact-based inquiry that is a jury question for trial.”

Neither Kristen Jean Farr, a Washington, D.C.-based attorney for the plaintiff, nor Matthew T. Shea and Molissa H. Farber, who represented the Social Security Administration, responded to a request for comment.

Remote work denied

Starting in 2015, Herkert worked as a branch chief for SSA’s Office of Buildings and Management, with work responsibilities that focused on supervisory oversight of building management services.

Herkert has physical disabilities, including renal and pulmonary impairment and spondylosis, according to the court record.

As a building manager, she was allowed one day of telework each week. She also requested and regularly received additional telework days to accommodate her disabilities.

In July 2017, Herkert met with her supervisor to request scheduled telework arrangements instead of the previous ad hoc accommodations she had been previously granted.

Herkert offered to submit a formal accommodation request. Her supervisor told her that wasn’t necessary and that additional telework would be approved as needed.

However, after that meeting, the plaintiff said “she began to face increased scrutiny and hostility” from her supervisor, and previously approved remote work accommodations were denied without explanation.

In September, Herkert’s immediate supervisor raised issues with her job performance. Shortly thereafter, Herkert sought equal employment opportunity counseling, citing harassment, failure to approve a reasonable accommodation and a hostile work environment. A few days later, a Social Security Administration medical officer determined that Herkert’s health issues met the threshold for a disabling condition, and that the scheduled remote work accommodations “would be ‘reasonable and effective.’”

Later that month, Herkert’s supervisors informed her that she was being reassigned to a management analyst position, a role that did not have supervisory responsibilities.

In a meeting about her reassignment a few days later, another supervisor offered her a similar position with the same pay and benefits in another Social Security office “that would ‘at least remove [her] from the hostile, harassing and retaliatory work environment” at the Office of Buildings Management.

Herkert accepted the second job reassignment offer with the understanding that she would not be allowed to remain in her current position. After the reassignment, the agency approved two days of telework and additional days as necessary.

‘Fait accompli’

Regarding what constitutes an adverse employment action, Harris wrote that Muldrow recognizes that losing supervisory authority “may be highly relevant to the ‘simple injury’ standard it is announcing. But this court does not read Muldrow as holding that a loss of supervisory responsibility will always be ‘disadvantageous,’ and can imagine circumstances in which, say the removal of burdensome supervisor duties could be a welcome development that improves the terms and conditions of employment.”

The panel accordingly declined to hold that “any loss of supervisory authority suffices as a matter of law to show an actionable ‘disadvantageous change’ in employment status. Instead, this is a context-specific inquiry, and it is for a jury to assess Herkert’s allegation that in her case, reassignment to a non-supervisory role was an adverse and ‘disadvantageous’ change that left her ‘worse off,’ even if not ‘significantly so.’”

Second, the panel disagreed with the trial judge’s reliance on another 4th Circuit case, Laird v. Fairfax County, in concluding that Herkert’s reassignment was voluntary.

In Laird, the judge held that a “transfer is not an adverse action when it is voluntarily requested and agreed upon.”

But in Herkert, the employee’s reassignment “was presented as a fait accompli, in response to purported performance issues on her part,” the panel noted.

Based on the plaintiff’s version of events, the job reassignment wasn’t voluntary.

Additionally, Harris wrote, “[A]n employer cannot transform a demotion into a voluntary transfer by giving an employee a choice between two demotions. And to the extent the district court believed the record would not allow a jury to credit Herkert’s account, that was mistaken.”

Finally, the trial judge’s view of Herkert’s reassignment as voluntary meant the lower court “had no occasion to consider that ‘unilateral[]’ reassignment of an employee to a ‘position they do not want’ may not qualify as a reasonable accommodation,” Harris said. “And because it viewed Herkert’s new non-supervisory job position as equal in all relevant respects to her old position, it had no occasion to consider whether it provided Herkert a ‘meaningful equal employment opportunity.’”