Employment: Reassignment could be adverse employment action

Where the government argued an employee’s reassignment was not an adverse employment action, because it entailed no diminution in pay grade, salary or benefits, it is for the jury to assess whether the loss of supervisory responsibilities sufficed as an adverse employment action.

Background

Mary Herkert is a Social Security Administration employee with a disability. According to Herkert, when she requested scheduled telework as an accommodation for her medical needs, her request was denied, and she informed her supervisors of her intent to pursue equal employment opportunity remedies. Shortly after that, Herkert says, she was reassigned to a less desirable position at the agency, where she was able to telework as requested.

Herkert sued in federal district court, claiming that her reassignment was discriminatory and retaliatory, and that it failed to reasonably accommodate her disability. The district court granted summary judgment to the defendant.

Discrimination adverse employment action

            The court reasoned, in part, that Herkert could not show the adverse employment action required for her discrimination and retaliation claims because her reassignment did not work a “significant” change in her employment status. Since the district court ruling, the Supreme Court has clarified, in Muldrow v. City of St. Louis, 601 U.S. 346 (2024), 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.

The parties nevertheless dispute whether Herkert can satisfy the Muldrow standard by showing “some disadvantageous change” – which need not be “significant,” “serious” or “substantial” – in the terms and conditions of her employment. The government argues that she cannot, emphasizing that Herkert’s reassignment entailed no diminution in pay grade, salary or benefits. Herkert, on the other hand, argues that her reassignment was tantamount to a demotion and distinctly “disadvantageous,” primarily because it took away her supervisory authority and duties.

Muldrow offers some support for Herkert’s position, recognizing that a loss of 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 supervisory duties could be a welcome development that improves the terms and conditions of employment.

Accordingly, the court declines 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.”

Retaliation adverse employment action

            As the district court recognized, courts have employed a distinct standard for identifying cognizable adverse actions in the retaliation context.  Herkert was required to show that “a reasonable employee would have found [her] reassignment to be materially adverse,” in that it “might have dissuaded a reasonable worker” from pursuing a discrimination complaint. For much the same reason a jury could credit Herkert’s allegations that her reassignment to a non-supervisory position was a “disadvantageous change” in her employment status, it could find that change might “dissuade a reasonable worker” from protected activity.

Voluntariness

The district court separately concluded that Herkert could not show an adverse action for either discrimination or retaliation purposes because her reassignment was “voluntary.” However an 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.

Accommodation claim

Herbert was required to show that (1) she is an individual with a qualifying disability, (2) that her employer had notice of that disability, (3) that she could perform the essential functions of her job with a reasonable accommodation and (4) that her employer refused to make a reasonable accommodation. Because it viewed Herkert’s reassignment as voluntary, for instance, the district 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. 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.”

Vacated and remanded.

Herkert v. Bisignano, Case No. 24-1420, Aug. 14, 2025. 4th Cir. (Harris), from DMD at Baltimore (Griggsby). Kristen Jean Farr for Appellant. Matthew T. Shea for Appellee. VLW 025-2-327. 20 pp.