Sometimes, the most sensible solution to an ongoing employee complaint is to transfer the employee. Doing so may give everyone a fresh start. But some employees may see that as retaliation, especially if the “fresh start” turns out to be a false one.
Such a retaliation claim is unlikely to succeed as long as there was no change in title, major job responsibilities, pay and benefits. While no two jobs are absolutely the same, as long as they are similar enough in all the basic attributes, it isn’t retaliation to transfer someone.
Recent case: Dean worked in IT. After leaving his state job for one at a different agency, he testified against his former boss in an internal investigation into sexual harassment allegations. A year later, he rejoined his original agency.
Then, about 3½ years later, the supervisor he had testified against became IT director. Shortly after, the supervisor transferred Dean to another position. There, Dean claimed that his new boss micromanaged him.
Dean sued, alleging retaliation for his testimony almost five years earlier.
The court tossed out the claim after the agency showed Dean earned the same after the transfer as he had before. Plus, he hadn’t lost any duties or responsibilities. All that really changed for the worse, according to Dean’s own testimony, was that he felt micromanaged. That’s not enough for a transfer to become grounds for a retaliation lawsuit. (Vicknair v. State of Louisiana, No. 13-30244, 5th Cir., 2014)
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