Maxwell, a disabled veteran and former manager of customer service with the U.S. Postal Service in Bloomfield Hills, Mich., filed an internal EEO charge in 2004 (for reasons not specified in Roger L. Maxwell v. Postmaster General of the United States).
Sometime after the EEO proceedings concluded, Frances Chiodini—an HR manager representing the Postal Service during the proceedings—adopted “an undisguised attitude of hostility toward [Maxwell] and undertook, over time, consistent adverse actions against Plaintiff in his employment,” according to the suit.
Among the allegations:
• Chiodini took adverse actions against Maxwell because he is male, and wrongfully rejected him from consideration for a promotion, which was subsequently awarded to a less-qualified female applicant.
• Maxwell was not included in a 2009 reduction in force, depriving him of a promotion and pay raise.
• His position was not upgraded from EAS-20 to grade EAS-21, while a “similarly situated” female was upgraded.
• Maxwell was not included in a 2010 downsizing, which again deprived him of a promotion and pay raise.
That’s right. Maxwell claims that emerging with his job after two rounds of layoffs adversely impacted his employment with the Postal Service.
As a disabled vet, Maxwell maintains he would have had certain rights in the event his position was included in a reduction in force, in the form of either an automatic upgrade to a new role or the permission to vie for a new position at a higher level. Instead, he was involuntarily transferred to a different facility, according to the complaint.
Maxwell subsequently sued, claiming retaliation and gender bias. While the Postal Service argued the transfer didn’t qualify as an adverse employment action, a trial court recently found that the transfer—which occurred in lieu of a promotion—could potentially constitute an adverse action.
The ruling is “fairly fact-specific and at a very early stage of litigation,” but the Maxwell case still holds lessons for employers and HR, says Eric Stevens, a Nashville, Tenn.-based attorney with Littler Mendelson.
“The transfer, in and of itself, appeared to be a neutral event,” says Stevens. “There was no change in compensation, duties, title or working conditions. Typically, such a move would not be considered a materially adverse change.”
However, he notes, the appeals court considered the potential effect of the transfer—disqualifying the plaintiff from an alleged automatic upgrade and pay increase—and found that effect sufficiently material to allow Maxwell to continue with the portion of his lawsuit relating to the transfer.
“There are occasions in which an employee may have been subject to inappropriate, possibly even unlawful treatment in the past,” continues Stevens. “Some employers, when they become aware of such circumstances, feel bound to avoid managing the employee as others would be managed because of that past improper conduct.”
This opinion demonstrates that, in the absence of a “longstanding and demonstrable policy of discrimination, an employer will not necessarily be liable for past, discrete violations,” he says.
“While no such violations should be countenanced by the employer, if one does occur, the employer should deal with it appropriately, and then continue to treat the aggrieved employee the same as any other employee.”