An employee with multiple sclerosis who agreed to transfer to a position with greater teleworking opportunities to settle her disability discrimination claim did not show she was targeted for discrimination or retaliation, the 4th U.S. Circuit Court of Appeals ruled.
The plaintiff has worked for Fairfax County, Va., for more than 25 years. She started as a file clerk and eventually worked her way up to a contract specialist I in the county’s Department of Procurement and Material Management. In 2012, she informed her boss about her multiple sclerosis diagnosis.
Seeking a reasonable accommodation under the Americans with Disabilities Act (ADA), the plaintiff asked if she could begin unscheduled telework, which her supervisor approved. This allowed her to telework whenever she wanted to or needed to, so long as she informed the supervisor. The plaintiff and her supervisor agreed that either party could revisit the accommodation at any time, and management would assess the accommodation’s effectiveness at least annually.
Over time, the supervisor found the plaintiff’s accommodation untenable based on the plaintiff’s job responsibilities. It was difficult for the supervisor to oversee the plaintiff to ensure that she had enough work to do, and successful telework required planned absences. The county modified the plaintiff’s accommodation, allowing her to telework two scheduled days or 16 hours per week. It also required her to come into the office for scheduled meetings.
In response, the plaintiff filed a complaint with the Equal Employment Opportunity Commission (EEOC), alleging that the county discriminated against her because of her disability by failing to provide the initial, more generous, accommodations. The parties negotiated for several months to settle the EEOC charge.
In May 2017, the plaintiff and the county reached a settlement agreement. The county agreed to provide, and the plaintiff accepted, a lateral transfer within the county to the Quartermaster Section of the Fairfax County Police Department to the position of buyer I. This job would preserve the plaintiff’s pay grade, position within the salary band and opportunity for future promotion. The plaintiff was given up to 16 hours of flexible telework each week and a lump sum of $30,000.
After approximately one month, the plaintiff asserted that certain duties in her new job description were not performed in the Quartermaster Section. The police department met with her and agreed to create a new position and job description, which removed the duties that were not performed in the Quartermaster Section and renamed the job title. But the plaintiff refused to formally accept the position.
The plaintiff felt her new position did not have the same opportunity for future promotion. She also believed the new position was an unskilled and boring job requiring rote data entry. In December 2017, the plaintiff sued the county in federal court, alleging that the county unlawfully discriminated by demoting her because of her multiple sclerosis, and that the county retaliated against her for her prior complaint. She claimed to have been “constructively demoted”—or forced to accept a demotion—by the county.
The county filed a motion for summary judgment, which the district court granted. On appeal, the plaintiff stated that she was no longer pursuing her constructive demotion claim.
The 4th Circuit determined that the plaintiff could not prove discrimination or retaliation, because she agreed to her job transfer to settle her prior discrimination claim. In fact, the settlement itself characterized the transfer as a reasonable accommodation, and it thus could not represent an adverse action. The court also noted that it had never decided whether a claim of constructive demotion exists.
In a concurring opinion, one judge opined that he would recognize a constructive demotion claim when a job is made objectively intolerable to force the plaintiff into accepting a lower position. Yet the 4th Circuit nonetheless upheld the district court’s dismissal of the plaintiff’s claims.
Laird v. Fairfax County, Va., 4th Cir., No. 18-2511 (Oct. 23, 2020).
Professional Pointer: With the possibility of new constructive demotion claims, employers must guard against pressuring an employee to accept job changes upon threat of discharge. Such conduct may end up creating liability even if the employee seems to desire the change to resolve workplace complaints.
Jeffrey Rhodes is an attorney with McInroy, Rigby & Rhodes LLP in Arlington, Va.