Move to Smaller Office Could Support Discrimination Claim
In order to make a claim under Section 1981, an employee must be able to show that he or she suffered an adverse employment action—but there can be some dispute as to what constitutes an adverse employment action. In a recent case, a district court in New York found that a school district’s relocation of a school counselor to a different (and less desirable) office space could constitute a materially adverse action and support a claim for discrimination. Postell v. Rochester City School District, et al., Case No. 11-CV-6550L (W.D.N .Y. Oct. 8, 2015).
Barbara Postell was an African-American woman employed as a school counselor at a high school in Rochester. Shortly after a new principal came to the high school, he relocated some of the administrators and counselors within the school. Postell was moved from her private office in the counselors’ suite to a different office space which consisted of a room divided into three parts. Postell shared the office space with an assistant principal and his assistant, the only other African-American administrative staff members in the building. The office space did not even have working telephones or computers, or suitable conference space where Postell could meet with students. All of the other school counselors (who were white) either stayed in their original offices or were moved to offices with working phones, computers and separate conference spaces.
Soon after, Postell was reassigned from her high school counselor position to a position working just with middle school students (which she claimed to be a demotion). Then, the next year, Postell was moved again, this time to a windowless former storage room beneath the auditorium balcony. Postell complained to the principal about the new caseload and the office locations. (Postell also ended up complaining to the New York State Department of Labor about some health issues she perceived to be associated with her second relocation and also filed union grievances.) Following her retirement (which she claimed was precipitated by the difficulties of working for the principal), she filed a lawsuit which included a claim of race-based discrimination in violation of Section 1981.
One of the grounds on which the school district sought summary judgment was that Postell had not identified any adverse employment actions. The school district argued that the relocations and change in her caseload (from high school to middle school students) were really just frivolous complaints and that the terms and conditions of her employment had not changed. But the district court disagreed, finding that she had been given a less prestigious caseload and that that the principal “repeatedly and unnecessarily placed plaintiff in office spaces that were inadequately outfitted or physically uncomfortable to the point of being harmful to her health, in locations which were inconvenient and isolated from other staff members and the students to whom plaintiff was assigned,” while not doing the same to similarly-situated white employees. Id. at 9. Under these circumstances, a reasonable trier of fact could find that the principal’s actions effect a substantial change in the terms and conditions of her employment. Id. at 10.
Does this mean an employer can never move an employee to a less desirable office space? No—but be sure the new office space is reasonable and has what is necessary for the employee and be careful about treating employees differently with regard to these kinds of relocations.