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Transfer was not retaliation
March 20, 2005 by Ross Runkel at LawMemo
California is rejecting the EEOC's and the 9th Circuit's definition of an "adverse employment action" in retaliation cases.
Dr. McRae was a surgeon at the California Medical Facility in Vacaville who filed a complaint with the California Department of Fair Employment claiming race discrimination, and later got transferred to the California State Prison in Solano. She sued under California law, claiming retaliation.
Prior California law
Earlier California cases made it clear that in a retaliation claim the plaintiff must show more than some form of adverse treatment, but must show that the employer's retaliatory actions had a detrimental and substantial effect on the plaintiff's employment.
9th Circuit position
In Ray v. Henderson, 217 F.3d 1234 (9th Cir 2000), the 9th Circuit adopted a broad statement of the kind of employer action that can constitute retaliation: "any adverse treatment that is based on a retaliatory motive and is reasonably likely to deter the charging party or others from engaging in protected activity." That was based on the EEOC Compliance Manual.
The outcome for McRae
The California Court of Appeal said she did not suffer "the kind of adverse employment action required for a claim of retaliation." McRae v. Dept of Corrections (California Ct App 03/18/2005).
The court said that a transfer can be an adverse employment action, but only if it "results in substantial and tangible harm." McRae's transfer was not a demotion and resulted in no loss of pay or benefits. The court said, "the record must contain substantial evidence that Solano Prison in fact presented a less desirable work environment than CMF, and, further, that the change was not just somewhat less pleasant, but had materially adverse consequences comparable in significance to a demotion, a decrease in wages or salary, a less distinguished title, a material loss of benefits, or significantly diminished responsibilities."
As for actual evidence, the court went through a number of assertions McRae made about the dangerousness of Solano Prison and the increased difficulties of working there, but the court discounted them all as being without evidence.
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Editor: Ross Runkel, Professor of Law Emeritus. email Ross@LawMemo.Com, Phone 503-399-8028. Copyright LawMemo, Inc.
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