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OK to transfer without fear of retaliation suit—if new job is substantially similar

by on
in Employment Law,Human Resources

Ever since 2006, when the U.S. Supreme Court’s Burlington Northern and Santa Fe Railroad Co. v. White decision made it easier to prove retaliation, employees are trying to push the envelope on what constitutes retaliation. Slowly, employers are getting answers.

While the test is whether the “retaliation” would dissuade a reasonable employee from complaining about an employer’s practice in the first place, employees still have to have fairly thick skins. Merely finding one’s job less satisfying isn’t enough to prove retaliation.

Recent case:
Gaven Demurry worked for the North Carolina Department of Corrections and supervised several programs he found personally satisfying. When he complained that a supervisor had some prisoners working on private projects, Demurry was transferred. His new assignment paid the same, but he missed the satisfying aspects of his prior job.

He sued, alleging the transfer was retaliation for whistle-blowing. He claimed he had far fewer “moments of personal satisfaction in the post to which he was reassigned.”

The court said that wasn’t enough to merit a retaliation lawsuit and dismissed the case. (Demurry v. North Carolina Department of Corrections, No. COA08-042, North Carolina Court of Appeals, 2009)

Final note: A transfer within the same organization to a substantially similar job isn’t likely to be retaliation. Remember, though, that a transfer to another shift or another location that has a substantial impact on child care or the like might be viewed as adverse.

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