Labor & Employment Law Daily Wrap Up, DISCRIMINATION—RACE—M.D. Ala.: On remand after Muldrow, school counselor, reassigned to teach, establishes adverse action, (Jan 6, 2025)

By Kathleen Kapusta, J.D.

The reassignment from guidance counselor to kindergarten teacher was within the same school and there was no change in the employee’s compensation.

On remand from the Eleventh Circuit after the Supreme Court’s Muldrow decision, a federal court in Alabama, changing course, found a Black school guidance counselor who, during a restructuring process, had been reassigned to a kindergarten teacher position sufficiently established that she had been subjected to an adverse employment action even though she suffered no change in pay, work hours, or work location. Denying summary judgment against her Title VII race discrimination claim, the court also found a fact question as to whether two white guidance counselors from different schools in the district were similarly situated to the employee and whether the school board’s stated reason for the reassignment was pretextual (Bennett v. Butler County Board of Education, No. 2:18-cv-01061-RAH [WO] (M.D. Ala. Jan. 3, 2025)).

After the school board hired a new superintendent to revitalize its failing school district, numerous employees were transferred or reassigned, including the guidance counselor who, after 16 years and with no stated reason, was assigned to teach kindergarten at the same school without any loss of pay or work hours. Her former position was filled by another Black female employee.

Prior court opinion. The employee sued, claiming race discrimination. Granting the school board’s motion for summary judgment, the court found she “failed to provide sufficient evidence showing that her reassignment within the same school constituted an actionable adverse action” and that “[h]er subjective and conclusory assertions, like that she was ‘set up to fail’ or that the position was less prestigious, [were] insufficient.” During the pendency of the employe’s appeal, the Supreme Court, in Muldrow v. City of St. Louis, held that to establish an adverse employment action under Title VII, an employee “need only show some injury respecting... employment terms or conditions” rather than “a significant employment disadvantage.”

As a result of the Muldrow decision, the Eleventh Circuit remanded the case for the court to re-examine the employee’s claim.

Adverse employment action. Reconsidering its prior decision in light of Muldrow, the court observed that while the employee “suffered no change in pay, work hours, or work location as a result of the reassignment, she had ‘invest[ed her] time, money, and [her] commitment to becoming a better counselor,’ and her reassignment to a kindergarten teacher position placed her, instead, in a position where she had not had any experience or ‘professional development’ in sixteen years.” This, said the court, was sufficient to show at least “some injury” respecting her employment terms or conditions such that the reassignment left her worse off. Accordingly, she sufficiently established an adverse employment action.

Similarly situated. The employee next argued that, in terms of presenting evidence of a comparator, the school district should be viewed as a whole, not as individual schools and places of employment. Accordingly, for comparators, she pointed to three white guidance counselors who worked at different schools and who did not receive reassignments. Although none of them had the same first-level supervisor, she argued that the superintendent and the board acted as their second- and third-level supervisors and they were all subject to the same personnel policies and procedures.

While the board argued that the employee was replaced by another Black woman, the court explained that just because an employee is replaced by someone of her same protected class does not automatically mean she cannot establish a prima facie case. Rather, the relevant inquiry is whether the employee provided evidence showing the board treated her differently than someone similarly situated to her and here, said the court, two of the guidance counselors she identified were sufficiently similarly situated.

Those guidance counselors, the court observed, had the same job title, job description, employer, and “second and third level supervisors.” Though the court acknowledged that the guidance counselors all reported directly to their respective principals, “the requirement that a plaintiff and the proposed comparator share the same immediate supervisor is not absolute.” Further, the court found a fact question as to whether the school principals actually recommended the guidance counselors’ transfers and reassignments or whether the decisions came directly from the central office.

Specifically, there was evidence the board’s administrative assistant emailed the employee’s principal directing the principal to “copy/paste” her recommendations to reassign the employee to the principal’s letterhead and thanking the principal for her “cooperation in [the] matter.” Further, the superintendent testified that he relied on the recommendations of central office administrators when he approved the employee’s reassignment. Based on this, said the court, a reasonable jury could find that the decision to reassign the employee came from the superintendent or board members and not her immediate supervisor.

Pretext. And while the board proffered a legitimate, nondiscriminatory reason for the reassignment—the reallocation of personnel resources at the employee’s school after it lost half of a counseling unit that was reallocated as a teaching unit—the employee presented evidence of pretext in the form of the board’s shifting reasons for the reassignment. The employee argued that while the board, as one of the reasons for her reassignment, pointed out that she was not trained in Response to Instruction (RTI), her replacement also did not have any RTI training certification.

Further, even though the employee lacked such certification, she had previously been asked to provide RTI services when she was a guidance counselor. In addition, while the principal stated in her affidavit that the employee’s reassignment was solely her decision, the superintendent testified that he took the recommendations of central office administrators regarding the reassignment.

Based on all these reasons, the court denied summary on the employee’s race discrimination claim.

The case is No. 2:18-cv-01061-RAH [WO].

Judge: Huffaker, R, Jr.

Attorneys: Charles E. Calloway (The Calloway Law Firm) for Regina M. Bennett. Allison Alford Ingram (Ball, Ball, Matthews & Novak) for Butler County Board of Education.

Companies: Butler County Board of Education

Cases: RaceDiscrimination Discrimination AlabamaNews