A recent decision, McCallum v. Alejandro Mayorkas, Secretary of the U.S. Department of Homeland Security, No. 21-1911 (ABJ), 2023 WL 2571757 (D.D.C. March 20, 2023), the court addressed an issue that is central to many, if not most, allegations of employment discrimination: namely, whether an alleged negative action by an employer constitutes an actionable “adverse employment action” under the anti-discrimination laws.
Generally, explained the court:
An adverse employment action is a “a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998). To establish an adverse employment action, a plaintiff must show that she “experience[d] materially adverse consequences affecting the terms, conditions, or privileges of employment or future employment opportunities such that a reasonable trier of fact could find objectively tangible harm.” Forkkio v. Powell, 306 F.3d 1127, 1131 (D.C. Cir. 2002). Plaintiff must, “in most cases,” show “direct economic harm,” Burlington Indus., 524 U.S. at 762, affecting, for instance, her grade or salary.
The court proceeded to apply the law to the facts. It largely dismissed plaintiff’s claims based on actions that were deemed not adverse employment actions, namely: the elimination of a proposed position; non-selection for a particular position; and negative performance reviews.
It reached a different conclusion, however, with respect to the reassignment of plaintiff’s responsibilities, explaining:
Plaintiff alleges that a wide range of her budgetary, contracting, and supervisory duties were removed and reassigned. Compl. ¶¶ 38–41, 51, 53, 78, 90, 126. “[R]eassignment with significantly different responsibilities” can establish an adverse employment action, Burlington Indus., 524 U.S. at 761, as can “[w]ithdrawing an employee’s supervisory duties.” Czekalski v. Peters, 475 F.3d 360, 364 (D.C. Cir. 2007); see also Burke v. Gould, 286 F.3d 513, 522 (D.C. Cir. 2002) (holding there was “no doubt that the removal of [plaintiff’s] supervisory responsibilities constituted an adverse employment action); see also Baloch v. Norton, 355 F. Supp. 2d 246, 258 (D.D.C. 2005) (citing instances where circuit courts have held a plaintiff’s job responsibilities significantly changed, such as a “deskilling” of her position or “correspondent increase in qualitatively inferior work”).
Construing the complaint in favor of plaintiff as the Court is required to do at this time, plaintiff’s allegations give rise to a plausible inference of reassignment with significantly different responsibilities. She alleges that defendant has eroded her budgetary and contracting duties over time and re-assigned her contracting duties to Nicholson. Compl. ¶ 126. Nicholson and Rocha took on many of her duties, including executing the furlough process. Compl. ¶ 78. Notably, plaintiff alleges that she has been “silo[ed]” from communicating with her coworkers and Community Resource Officers that she previously supervised as a Contracting Officer Representative, losing supervisory responsibilities she held for at least two years. Compl. ¶¶ 38–41, 51, 53. The Court therefore finds that plaintiff has sufficiently alleged that she suffered an adverse employment action because of her protected status and denies the motion to dismiss Counts I and II insofar as those claims are based on the reassignment of plaintiff’s work responsibilities.
Accordingly, it granted defendant’s motion to dismiss plaintiff’s race- and gender-based discrimination claims, except those based on the reassignment of her responsibilities.