United States: Was Graveyard Shift Transfer A Result Of Discrimination?

A federal judge in Aberdeen, Mississippi recently heard an employee's claims that she was rescheduled to the graveyard shift as a result of discrimination and that she had been subjected to a hostile work environment.

The court's ruling provides reassurance to employers that not every employee inconvenience and workplace complaint gives rise to a federal claim.

Facts

In September 2014, "Shirley," an African-American woman, began working part-time as a licensed practical nurse for healthcare provider Covenant Dove. In January 2015, she moved into a full-time position, working from 11:00 p.m. to 7:00 a.m. In September, she requested and was granted a move to the 7:00 a.m. to 3:00 p.m. shift.

In February 2016, however, Covenant Dove informed Shirley that she would be moved back to her original late-night shift. The company maintained that the schedule reassignment was necessary to provide adequate staffing on all shifts and that management made the decision based on seniority.

Shirley filed suit, claiming that Covenant Dove discriminated against her based on her race, gender, and age (she was 47 years old at the time) and retaliated against her when it moved her back to the late-night shift. She also alleged that she was subjected to a hostile work environment. Covenant Dove asked the court to dismiss her claims.

Court's Decision

To state a claim for discrimination, an employee must demonstrate that she suffered an adverse employment action. Analyzing Shirley's claim as a failure-to-promote allegation, the court held that she had failed to identify an adverse employment action.

Although a transfer to a different position or shift could be deemed a failure to promote—and therefore an adverse employment action—Shirley hadn't put forth any evidence that there was a discernable difference in workload, duties, responsibilities, or prestige between the shift she wanted and the graveyard shift. The only difference between the two shifts was the time, which wasn't enough to make the transfer an adverse employment action.

Regarding Shirley's retaliation claim, the court noted that the standard wasn't as high as with a discrimination claim (i.e., an employee need not show an ultimate employment action for a retaliation claim, just an action that "might have dissuaded a reasonable worker from making or supporting a charge of discrimination").

However, her complaint about the transfer back to the late shift wasn't enough to meet even that lower standard. Also, because she couldn't have complained about the schedule change until after the decision to reassign her had been made, it was impossible for her to demonstrate that the transfer was retaliation for her complaint.

Finally, regarding her hostile work environment claim, Shirley claimed that her supervisor was generally rude to her, often rolled his eyes at her, told her that he was "just sick of" her, wrongly accused her of discontinuing medications on her cart, and placed a new patient in her wing without first notifying her. The court held that those actions didn't reach the high bar for establishing a hostile work environment claim.

Shirley also failed to demonstrate that the alleged harassment was based on her race, gender, or age or that it had any effect on the terms, conditions, or privileges of her employment or otherwise interfered with her employment in any way. Brown v. Covenant Dove Corporate, 2017 WL 4798136 (N.D. Miss., Oct. 24, 2017).

Takeaway

The court's opinion interjects some much-needed common sense when it comes to analyzing discrimination and retaliation claims in the workplace. You should note, however, that the decision could have been different had there been any meaningful difference between the shifts involved in Shirley's complaint.

For instance, if the earlier shift carried with it more prestige, opportunity for further advancement, higher pay, or greater benefits, the court very likely would have found that the transfer back to the graveyard shift was an adverse employment action. She still would have had to demonstrate the decision was based on her race, gender, or age, but she would have satisfied the initial hurdle of identifying an adverse action.

As for Shirley's hostile work environment claim, the court took time to contrast her allegations with cases in which a hostile work environment claim has been found. The takeaway is that petty slights and everyday annoyances don't constitute a hostile work environment.

That's reassuring, but you should always take a close look at allegations of harassment to ensure employees aren't being mistreated because of protected characteristics and that the conduct they are complaining about isn't affecting their terms and conditions of employment.

Martin J. Regimbal, a shareholder of The Kullman Firm, and an editor of Mississippi Employment Law Letter, can be reached at 662-244-8824 or mjr@kullmanlaw.com.

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