Doe v. DeKalb County Board of Educ. , 145 F.3d 1441 ( 1998 )

PUBLISH
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
_______________ FILED
No. 97-8915 U.S. COURT OF APPEALS
_______________ ELEVENTH CIRCUIT
2/19/03
D. C. Docket No. 1:96-cv-2313-RCF
THOMAS K. KAHN
CLERK
JOHN DOE,
Plaintiff-Appellee,
versus
DEKALB COUNTY SCHOOL DISTRICT,
Defendant-Appellant.
______________________________
Appeal from the United States District Court
for the Northern District of Georgia
______________________________
(July 17, 1998)
Before ANDERSON and BIRCH, Circuit Judges, and PAINE*, Senior
District Judge.
BIRCH, Circuit Judge:
*
Honorable James C. Paine, Senior U.S. District Judge for the Southern District of
Florida, sitting by designation.
The Dekalb County School District (the “School District” or
“District”), seeks to vacate a permanent injunction prohibiting it
from transferring a teacher, John Doe, who is infected with HIV,
the virus that causes AIDS. The School District wishes to transfer
Doe from a classroom of children with severe behavioral
disorders, because it fears that Doe might have blood-to-blood
contact with one of his sometimes-violent students, thereby
transmitting HIV. After conducting a bench trial, the district court
granted Doe a permanent injunction under the Americans with
Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq, blocking his
transfer. The School District, however, argues that the district
court failed to make adequate findings of fact regarding the effect
of Doe’s illness on his qualifications and that Doe has not suffered
an “adverse employment action.” We REVERSE, VACATE the
injunction, and REMAND for further proceedings.
I. BACKGROUND
2
The School District has three distinct levels of special
education programs for children with significant behavioral
disorders. First, the District maintains “interrelated” classrooms
for students with mild disorders; the District “mainstreams” these
students for most of each school day. Second, the District has
“self-contained” classrooms for children who are too “disordered”
to participate in the interrelated program. Third, the District
operates “psychoeducation” classrooms for students with the
most severe behavioral problems. From 1992 to 1995, John Doe
was a teacher at the District’s Shadow Rock Psychoeducational
Center (“Shadow Rock”).1
Children enrolled in the District’s psychoeducation classes
are often aggressive. As the District established at trial, these
children frequently engage in acts of violence such as biting,
hitting, scratching, and kicking. Some children also attempt to
bring dangerous items such as razors to school or to attack their
1
Like the district court, we have allowed the plaintiff-appellee to proceed under the
pseudonym “John Doe” in order to protect his privacy.
3
classmates or teachers with objects such as pencils. Because of
these potential dangers, psychoeducation teachers must be able
to physically restrain their pupils; for example, a psychoeducation
teacher may have to “basket hold” several students each day.
Often, these confrontations result in injuries to teachers. Although
the number of scrapes and bruises suffered by teachers is
unclear, psychoeducation teachers commonly file workman’s
compensation claims for significant injuries, and, at least once, a
teacher has suffered a severe bite that drew blood and required
medical attention.
In February 1995, Doe told Shadow Rock’s principal that he
was HIV-positive, and the principal in turn informed other school
administrative personnel. Because District officials feared that
violence and subsequent blood-to-blood contact between Doe
and one of his psychoeducation students might lead to
transmission of HIV, the District transferred Doe to an
“interrelated” classroom at a different school in April 1995. The
4
parties dispute whether this transfer was “voluntary”; the District
emphasizes that Doe signed a transfer form, while Doe argues
that he had no choice but to sign and that he hoped that by doing
so he might at least get to teach a “self-contained” rather than an
“interrelated” class. While the district court’s finding regarding this
point is somewhat unclear, the court appears to have concluded
that the transfer was involuntary. In any case, Doe spent the
months after his transfer trying to convince the District to return
him to his psychoeducation class, or, as an alternative, to assign
him to a group of “self-contained” children.
Although Doe would prefer to teach a psychoeducational
rather than an interrelated class, his transfer does not appear to
represent a demotion. Doe’s salary, benefits, and seniority all
remain the same. Doe also enjoys the same relative level of
prestige within the school system and the larger community. In
addition, while Doe lacks a certificate from the State of Georgia in
interrelated teaching, his transfer does not seem likely to render
5
obsolete his investment in his own education. Although Doe’s
teaching experience has focused on psychoeducation, he does
not have a particularly specialized educational background. Doe
holds a bachelor’s degree in psychology from New York
University and a master’s degree in special education from
Georgia State University.
Doe, however, does have a Georgia certificate in
psychoeducational teaching but not in interrelated instruction. To
obtain an interrelated certificate, Doe would have to complete ten
credit hours of coursework. In order to reduce any inconvenience
this additional study might pose to Doe, the District has allowed
Doe three years to become certified and promised to pay his
educational expenses. In addition, the District has suggested that
Doe might be able to count his ten hours concerning interrelated
teaching toward the continuing education total that he would have
to achieve in any case to retain his current certification, though
this point is not clear in the current record. Even without the
6
interrelated certificate, Doe appears qualified to teach an
interrelated class, since his interrelated pupils suffer from the
same sort of disorders as his previous psychoeducational
students—his new students are just easier to teach because they
are less prone to misbehavior. As Doe concedes, his new
interrelated position is less stressful. Significantly, Doe also
agrees with the District that he will be more marketable as an
interrelated teacher (once he obtains his certificate), with more
long-term career opportunities, than he was before his transfer.
On August 1, 1995, Doe learned from the District’s Executive
Director of Personnel that he could not return to a
psychoeducation setting or move to a self-contained classroom
because of his HIV status. On August 3, 1995, Doe therefore
timely filed a discrimination charge with the federal Equal
Employment Opportunity Commission (“EEOC”) alleging that the
District was discriminating against him on the basis of his HIV
disability. After the EEOC issued Doe a right-to-sue letter, he
7
brought this action in the district court under both the ADA and the
Vocational Rehabilitation Act (“VRA”) 29 U.S.C. § 791 et seq.
From July 28 through July 31, 1997, the district court held a
bench trial on Doe’s claims. On August 1, 1997, the district court
ruled in Doe’s favor and issued a short written order containing
terse findings of fact and conclusions of law. After noting that the
parties agreed that Doe’s HIV infection rendered him disabled, the
district court found that “[t]he risk that plaintiff will transmit HIV to
students with severe behavior disorders, including children who
are prone to bite, is remote and theoretical.” R4-59 at 2, ¶ 11.
The court also found that Doe had suffered an adverse
employment action. The district court, however, made no attempt
to explain the basis for its conclusion regarding the risk of HIV
transmission to Doe’s psychoeducation students, nor did the court
offer any rationale for its assessment that Doe’s transfer was
“adverse.”2 Whatever its underlying reasoning, the district court
2
The district court did list three findings of fact elsewhere in its order that it apparently
thought were relevant to its holding that Doe’s transfer was adverse. First, the district court
8
issued a permanent injunction under the ADA requiring the School
District to reinstate Doe as a psychoeducational instructor.3
II. DISCUSSION
In order to prevail under the ADA, Doe must prove all three
elements of his prima facie case by a preponderance of the
evidence.4 First, he must show that he has a disability.5 Second,
he must demonstrate that he is qualified to serve as a
psychoeducation teacher, with or without some reasonable
accommodation by the District, despite his disability. Third, he
found that “Plaintiff is certified to teach children with behavior disorders, and teaching in this
field has special meaning and significance to him.” R4-59 at 1, ¶ 11. Second, the district court
observed that “Plaintiff is not certified to teach in an interrelated program.” Id. at 2, ¶ 7. Third,
the district court stated that “Plaintiff did not wish to be moved from his classroom at Shadow
Rock . . . .” Id. at 2, ¶ 8.
3
The district court did not separately discuss Doe’s VRA claim.
4
On appeal, Doe does not argue that we should read the VRA to provide him with any
cause of action or form of relief that is unavailable under the ADA. In fact, Doe makes no
arguments at all premised on the VRA. We, therefore, deem Doe’s VRA claim to have been
abandoned, and we discuss his claim as if it arose solely under the ADA. See Allstate Ins. Co. v.
Swann, 27 F.3d 1539, 1542 (11th Cir. 1994) (stating that issues not raised in a party’s brief are
considered abandoned).
5
A person who is infected with HIV is “disabled” for purposes of the ADA, even if he has
not developed AIDS. See Bragdon v. Abbott, No. 97-156, __ U.S. __, __ S. Ct. __, __ L. Ed. 2d
__ (June 25, 1998).
9
must show that he has suffered an adverse employment action
because of his disability (i.e., that he has suffered employment
discrimination). See Harris v. H & W Contracting Co., 102 F.3d
516, 519, 523-24 (11th Cir. 1996) (discussing the elements of a
prima facie case under the ADA).
The School District contends that the district court made two
critical errors in applying this framework. First, the District argues
that the court did not properly find or balance relevant safety
factors regarding Doe’s continued qualification for a
psychoeducation position, as required by School Bd. of Nassau
County v. Arline, 480 U.S. 273, 107 S. Ct. 1123, 94 L. Ed. 2d 307(1987). Second, the District maintains that its transfer of Doe was
not an “adverse employment action.” We review the district
court’s findings of fact for clear error and its analysis of law de
novo. See Fed. R. Civ. P. 52(a); Simmons v. Conger, 86 F.3d
101080, 1084 (11th Cir. 1996).6 We address each of the District’s
contentions in turn.
A. WHETHER DOE IS QUALIFIED
In Arline, the Supreme Court considered whether a woman
suffering from tuberculosis was otherwise qualified to be an
elementary schoolteacher. See generally Arline, 480 U.S. 273,
107 S. Ct. 1123 (applying the VRA). Rather than establishing
some arbitrary rule regarding the relevance of contagious disease
to teaching qualifications, the Court insisted that district courts
undertake “individualized inquiry” in each case. Id. at 287, 107 S.
Ct. at 1130. This inquiry must include:
(a) the nature of the risk (how the disease is
transmitted), (b) the duration of the risk (how long is the
carrier infectious), (c) the severity of the risk (what is the
potential harm to third parties), and (d) the probabilities
the disease will be transmitted and will cause varying
degrees of harm.
6
The School District concedes that, if Doe is disabled, is otherwise qualified, and has
suffered an adverse employment action, then a permanent injunction prohibiting Doe’s transfer
based on his HIV status would be appropriate.
11
Id. at 288, 107 S. Ct. at 1131 (quoting Amicus Curiae Brief of the
American Medical Association at 19). In making these findings, a
district court “normally should defer to the reasonable medical
judgments of public health officials.” Id.Once a district court has made the necessary medical
findings, it must weigh the statutory goal of ending disability-
based discrimination against any legitimate concerns regarding
“significant health and safety risks.” Id. If the court finds that, on
balance, a plaintiff’s disability would render him unqualified for
safety reasons, then the court must consider whether the
employer can “reasonably accommodate” the plaintiff so that he
can perform “the essential functions” of the job in question. Id. at
1131 & 1131 n.17 (quoting 45 C.F.R. § 84.3(k) (1985)). Finally,
whatever the district court’s legal conclusion regarding a claim of
disqualification due to safety concerns, the court must make
explicit both its findings of fact and its application of the law, so as
to allow meaningful appellate review. See id.12
In this case, the district court found, without explanation, that
Doe’s HIV infection would pose only a “remote and theoretical”
risk to psychoeducational students. R4-59 at 2. Based on this
sole finding and “[c]onsidering the four factors delineated in”
Arline, the district court relied on our opinion in Martinez v. School
Bd. of Hillsborough County, 861 F.2d 1502, 1506 (11th Cir. 1988),
to hold that Doe is qualified to be a psychoeducation teacher. R4-
59 at 3.
In Martinez, a school sought to segregate a mentally
retarded child with AIDS from her classmates. Holding for the
school, the district court in Martinez concluded that a “‘remote
theoretical possibility’ of transmission” justified her total separation
from other students. Martinez, 861 F.2d at 1506. On appeal, we
reversed because the danger of transmission did not rise to the
“‘significant’ risk level” required for the girl’s exclusion from a
regular classroom. Id. In reversing the district court, however, we
did not simply direct entry of judgment for the disabled plaintiff.
13
Instead, we observed that the district court had failed to make
factual findings regarding all four of the Arline factors (the district
court had considered only the likelihood of transmission), and we
remanded for further findings and an assessment of the overall
risk. See id. at 1506-07.
In the present case, the district court has not made any
factual findings that might enable us to engage in meaningful
appellate review. As in Martinez and Arline, the district court has
failed to explain or justify the factual determinations underlying its
decision. It is not enough for the district court to invoke Martinez’s
phrase regarding a “‘remote theoretical possibility’ of
transmission”. Instead, the district court should explain why it
believes that the risk posed by Doe is “remote” and should make
findings of fact with respect to the Arline factors.7 Because the
district court’s factual findings are incomplete and its reasoning is
7
We do not mean to imply that we believe that Doe is not qualified. Because the district
court has neither made sufficient findings of fact nor explained its legal reasoning, we are not
able to assess whether Doe is “otherwise qualified” for a psychoeducation position.
14
unclear, we vacate the injunction and remand the case to the
district court for such further proceedings as it deems necessary
for entry of a more explicit rationale for its decision.8
B. WHETHER DOE’S TRANSFER CONSTITUTED AN
ADVERSE EMPLOYMENT ACTION
Under the ADA, no covered employer may discriminate
against a qualified person because of his disability. See 42
8
We are also concerned about the nature of the legal standards applied by the district
court, as evidenced by its comments in the record. For example, during the School District’s
examination of a witness, the district court stated to the parties that it was confused about what
should constitute relevant evidence and that it believed that the legal test for whether the School
District had violated the ADA was simply whether the District had acted “reasonably.” R7 at
502. When counsel for both parties attempted to assist the court, the following exchange ensued:
PLAINTIFF’S COUNSEL: Your Honor, may I interject? I don’t want you to get
mad at me for saying this, but I just want to real quickly state for the record how
the issue should be framed from the legal standpoint. The issue is not whether the
school board acted reasonably, but rather did they make an employment decision
on the basis of my client’s disability, and was he otherwise qualified to stay at
Shadow Rock or did he present a direct threat?
COURT: You can call it whatever you want to, but the bottom line is what I said.
Whether it’s based on his qualifications or otherwise, it’s whether they acted
reasonably.
PLAINTIFF’S COUNSEL: Well, legally it’s based on –
COURT: All right. You worry about that if I rule against you and you can take it
up to the Eleventh Circuit.
Id. at 503. We would have preferred that the district court make a greater effort to ascertain the
legal basis for Doe’s action before it made evidentiary or other rulings.
15
U.S.C. § 12112(a). More specifically, no covered employer may
use the disability of an otherwise qualified person as an excuse
for discrimination in hiring, promotion, discharge, compensation,
training, or “other terms, conditions, and privileges of
employment.” Id. Thus, the ADA prohibits “a broad variety of
adverse employment actions, whenever those actions are taken
for a prohibited reason.” McNely v. Ocala Star-Banner Corp., 99
F.3d 1068, 1077 (11th Cir. 1996). Although we have never
thoroughly examined what constitutes “adversity,” we have held
that a transfer may sometimes constitute an adverse action under
the ADA, see id. at 1078.
In this case, both parties agree that the School District
transferred Doe to an interrelated classroom because of his HIV
disability. The School District, however, argues that it has not
unlawfully “discriminated” against Doe because an “objective,”
“reasonable” person in Doe’s position would not have viewed the
transfer as an adverse employment action. Doe, though,
16
maintains that an employment action may be adverse for either
objective or subjective reasons. Doe therefore contends that his
transfer was adverse both because he has a deep, personal
commitment to psychoeducational instruction and because he
would have to undergo ten credit hours of instruction in order to
obtain certification in interrelated teaching.
In its order, the district court did not explicitly adopt either an
objective or subjective standard, but instead simply stated, without
explanation, that “Plaintiff’s transfer to the interrelated resource
program was an adverse employment action.” R4-59 at 3, ¶ 6. It
seems likely, however, that the district court implicitly adopted
Doe’s approach, since its only factual findings that might
conceivably have supported this legal conclusion were that (1)
Doe is not certified for interrelated teaching, (2) psychoeducation
“has special meaning and significance to him,” and (3) his
transfer was involuntary. Id. at 1-2.9
9
Although the district court gave no explanation in its order for its conclusion that the
transfer was adverse, it did appear to state during the trial that its decision concerning adversity
17
Before assessing Doe’s particular allegations, we must first
determine the proper standard for evaluating his claims. As we
noted above, our circuit has not previously examined whether a
court should view an employment action from the subjective
perspective of a particular plaintiff or the objective perspective of a
“reasonable person.” Our court has, though, considered
allegations of “adverse employment actions” in a variety of
contexts, as have our sister circuits. See generally, e.g., H & W
Contracting, 102 F.3d at 523-24 (11th Cir. 1996) (discussing
adverse employment action in the ADA context); Maddow v.
Proctor & Gamble Co., 107 F.3d 846, 852-53 (11th Cir. 1997)
(discussing same under the Age Discrimination in Employment
Act (“ADEA”), 29 U.S.C. §§ 621-634); Collins v. State of Illinois,
830 F.2d 692, 702-704 (7th Cir. 1987) (discussing same under
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq).
Both the ADEA and Title VII, for instance, use the same “terms
would turn on whether it found Doe’s transfer to have been voluntary or involuntary. See R8 at
605.
18
and conditions” language to proscribe discriminatory employment
practices. Compare ADEA, 29 U.S.C. § 623(a)(1), and Title VII,
42 U.S.C. § 2000e-2(a) with ADA, 42 U.S.C. § 12112(a).
Moreover, our precedents interpreting these employment
discrimination laws have often relied on the same “adverse
employment action” concept that is an essential element of a
prima facie ADA case. See, e.g., Maddow, 107 F.3d at 852-53(ADEA); Collins, 830 F.2d at 702-04 (Title VII).10 We can assist
our consideration of the adversity standard under the ADA,
therefore, by looking to the broader experience of our court and
others with employment discrimination law.
We begin our analysis of the law in this area by noting that
we have found no case, in this or any other circuit, in which a
court explicitly relied on the subjective preferences of a plaintiff to
hold that that plaintiff had suffered an adverse employment
10
An “adverse employment action” is also an element of two broad types of prima facie
discrimination cases: (1) a prima facie circumstantial case, see Carter v. City of Miami, 870 F.2d
578, 582 (11th Cir. 1989), and (2) a prima facie retaliation case, see Raney v. Vinson Guard
Serv., Inc., 120 F.3d 1192, 1196 (11th Cir. 1997).
19
action.11 Of course, in most employment discrimination cases the
issue of a plaintiff’s subjective preference need not arise, because
the plaintiff has alleged an employment action that would appear
adverse to any reasonable person. Where a plaintiff has allegedly
suffered termination, demotion, reduction in pay, loss of prestige,
or diminishment of responsibilities, for example, a court normally
has no cause to consider its standard for adversity; the relevant
question in such cases is whether such patently adverse actions
actually took place. Cf., e.g., Eskra v. Provident Life and Accident
Ins. Co., 125 F.3d 1406, 1412 (11th Cir. 1997) (considering a
reduction in income, but not mentioning the plaintiff’s subjective
preferences, in ruling that a transfer was adverse).
11
In Collins, a panel of the Seventh Circuit did note that the plaintiff had been
“transferred away from a job she enjoyed.” 830 F.3d at 704. The Collins court, however,
appears to have based its determination that the plaintiff had suffered an adverse employment
action on its finding that her employer had severely curtailed her job responsibilities. See id.
Moreover, any intimation in Collins that a court should consider an employee’s subjective
preference would seem to have been abandoned by the Seventh Circuit in later cases such as
Williams v. Bristol-Myers Squibb Co., 85 F.3d 270, 274 (1996) (holding that a “purely lateral
transfer” cannot be adverse), which we discuss below.
20
Recognizing this lack of precedent, Doe urges us to rely on
two EEOC regulations interpreting the ADA. See 29 C.F.R. §§
1630.4, 1630.5 (1998). As Doe correctly notes, we defer to a
federal agency’s reasonable interpretation of a law that Congress
has given it authority to administer. See Chevron, U.S.A., Inc. v.
Natural Resources Defense Council, Inc., 467 U.S. 837, 844-45,
104 S. Ct. 2778, 2782-83, 81 L. Ed. 2d 694 (1984). The EEOC’s
regulations, however, are of no assistance in this matter, because
they do not address whether we should use an objective or
subjective test to determine whether discrimination has occurred.
In 29 C.F.R. § 1630.4, the EEOC makes clear that an employer
may not “discriminate on the basis of disability against a qualified
individual with a disability in regard to . . . [a] transfer.” The
EEOC’s regulation, however, does not state whether this
prohibition on discrimination encompasses both objectively and
subjectively adverse actions. Section 1630.4, therefore, does
not provide us with any more guidance than our own precedent
21
establishing that a transfer may sometimes constitute an
adverse employment action. See McNely, 99 F.3d at 1078(holding that a transfer may be an adverse employment action).
Similarly, 29 C.F.R. § 1630.5 forbids employers from limiting,
segregating, or classifying an employee “in a way that adversely
affects his or her employment opportunities,” yet does not specify
what constitutes an adverse effect. As to both section 1630.4 and
section 1630.5, moreover, the EEOC’s “interpretive guidance”
provides no further help regarding whether we should employ an
objective or subjective standard. See generally 29 C.F.R. Pt.
1630, App. §§ 1630.4, 1630.5 (1998).
Having determined that we are not bound to a subjective
standard, we adopt an objective test: An ADA plaintiff must
demonstrate that a reasonable person in his position would view
the employment action in question as adverse. In our view, this
test best reflects our employment discrimination doctrine and
precedents. First, although this court has never explicitly
22
addressed the issue, our authorities do at least suggest an
objective approach. In National Cement Co. v. Federal Mine
Safety and Health Review Comm’n, 27 F.3d 526 (11th Cir. 1994),
we considered whether a company had violated the Mine Act, 30
U.S.C. § 815(c), when it transferred an employee who had
refused to do what he claimed was unreasonably dangerous
work. Because the employer had transferred the plaintiff to a
higher paying job, we ruled that it had not taken an unlawful
“adverse action,” without considering whether the plaintiff might
have had a subjective preference for his previous position. See
id. at 534.12 Moreover, we note that two district courts within our
circuit have ruled, in retaliation cases, that “an employment action
. . . is not adverse merely because the employee dislikes it or
disagrees with it.” Perryman v. West, 949 F. Supp. 815, 819
12
Of course, we do not know whether the plaintiff in National Cement argued that his
subjective preference was sufficient, alone, to establish that his transfer was adverse. For this
reason, National Cement is not controlling precedent. This same caveat applies to the various
other suggestive authorities discussed in this opinion, since we have no way to determine
whether the issue of a subjective versus an objective standard was raised by the parties.
23
(M.D. Ala. 1996); accord McCoy v. Macon Water Auth., 966 F.
Supp. 1209, 1220 (M.D. Ga. 1997). While these district court
cases are not controlling, they are consistent with our court’s
previous observation that not “every unkind act” amounts to an
adverse employment action. Wu v. Thomas, 996 F.2d 271, 273
n.3 (11th Cir. 1993) (per curiam). At the same time, it seems
significant that no panel of this circuit has ever listed a plaintiff’s
particular subjective preference as a basis for its holding that a
transfer was adverse.13
Outside our own circuit, persuasive authority suggests even
more strongly that we should use a reasonable person standard
to determine whether a plaintiff has suffered an adverse
employment action. The Seventh Circuit, in particular, has
repeatedly declared that “a purely lateral transfer, that is, a
13
See generally Maddow, 107 F.3d at 852-53 (holding a transfer to be adverse); Eskra,
125 F.3d at 1412 (same); McCabe v. Sharrett, 12 F.3d 1558, 1563-64 (11th Cir. 1994) (same);
Baker v. Sears, Roebuck & Co., 903 F.2d 1515, 1519 (11th Cir. 1990) (per curiam) (same); see
also McNely, 99 F.3d at 1078 (holding that an transfer can constitute an adverse employment
action under the ADA).
24
transfer that does not involve a demotion in form or substance,
cannot rise to the level of a materially adverse employment
action.” Williams, 85 F.3d at 274; see also Flaherty v. Gas
Research Inst., 31 F.3d 451, 457 (7th Cir. 1994); Crady v. Liberty
Nat’l Bank and Trust Co., 993 F.2d 132, 136 (7th Cir. 1993);
Spring v. Sheboygan Area Sch. Dist., 865 F.2d 883, 885-86 (7th
Cir. 1989). “Otherwise,” the Seventh Circuit has written, “every
trivial personnel action that an irritable, chip-on-the-shoulder
employee did not like would form the basis of a discrimination
suit.” Williams, 85 F.3d at 274.14 Thus, “not everything that
makes an employee unhappy is an actionable adverse action.”
See Smart v. Ball State Univ., 89 F.3d 437, 441 (7th Cir. 1996).
Several other circuits, moreover, have agreed that a truly
lateral transfer cannot be adverse. In Montandon v. Farmland
Industries, for example, the Eighth Circuit found that an allegedly
14
The Williams court also was concerned that, if purely lateral transfers were actionable,
then “[t]he Equal Employment Opportunity Commission, already staggering under an avalanche
of filings too heavy for it to cope with, would be crushed, and serious complaints would be lost
among the trivial.” Williams, 85 F.3d at 274.
25
retaliatory transfer was not adverse because it “did not entail a
change in position, title, salary, or any other aspect of his
employment . . . .[,] [h]owever unpalatable the prospect [of the
transfer] may have been to him . . . .” 116 F.3d 355, 359 (8th Cir.
1997); see also Harlston v. McDonnell Douglass Corp., 37 F.3d
379, 382 (8th Cir. 1994). Similarly, the Sixth Circuit has held that
a nurse’s transfer was not adverse because it did not entail a loss
of pay, duties, or prestige, see Kocsis v. Multi-Care Management,
Inc. 97 F.3d 876, 886 (6th Cir. 1996), while the Ninth Circuit has
written that a plaintiff’s transfer amounted to “a subjective loss of
job satisfaction rather than an adverse employment action,” see
Horn v. County of San Diego, No. 96-55610, (9th Cir. Sept. 18,
1997) (per curiam). Accord Nidds v. Schindler Elevator Corp.,
113 F.3d 912, 919 n.3 (9th Cir. 1996), cert. denied, __ U.S. __,
118 S. Ct. 369, 139 L. Ed. 2d 287 (1997). At the same time, the
Third Circuit has adopted Smart’s view that “not everything that
makes an employee unhappy” constitutes unlawful retaliation.
26
Robinson v. City of Pittsburgh, 120 F.3d 1286, 1300 (3d Cir.
1997) (“[R]etaliatory conduct must be serious and tangible enough
to alter an employee’s compensation, terms, conditions, or
privileges of employment into . . . ‘adverse employment action.’”).
Thus, “[t]he clear trend of authority is to hold that” a purely lateral
transfer is not an adverse employment action. Ledergerber v.
Stangler, 122 F.3d 1142, 1144 (8th Cir. 1997).
Of course, these cases do not articulate a reasonable person
standard, nor do they explicitly stand for the proposition that a
court may not ever consider a plaintiff’s subjective preferences in
determining whether his transfer is “purely lateral.”15
Nevertheless, they are, at a minimum, consistent with the
objective standard that we expressly adopt in this opinion. As in
the Eleventh Circuit, all of the cases that have found a transfer to
15
Often, in fact, these cases appear to leave the door open to adversity based on some
subjective preferences, through their use of language like that in Smart that “not everything that
makes an employee unhappy is an actionable adverse action.” Smart, 89 F.3d at 441 (emphasis
added). Unlike the hypothetical “chip-on-the-shoulder employee” in Williams, Doe has a
significant, and deeply held, special commitment to psychoeducation for severely disordered
children. Compare Williams, 85 F.3d at 274. This case, therefore, takes us a step beyond these
authorities.
27
be adverse appear to have based their conclusions on objective
factors. See, e.g., De la Cruz v. New York City Human
Resources Admin. Dep’t of Soc. Serv., 82 F.3d 16, 21 (2d Cir.
1996) (transfer resulting in lessened prestige and professional
growth); Torre v. Casio, Inc., 42 F.3d 825, 831 n.7 (3d Cir. 1994)
(transfer to a dead-end job). In other words, our sister circuits
have only held transfers to be adverse where the transfers were
objectively equivalent, at least to some degree, to demotions.
Beyond these precedents from our sister circuits, we can
also look to related principles of employment discrimination law to
find support for the proposition that our test for adversity should
be an objective one. Under the doctrine of “constructive
discharge,” for example, “[t]he general rule is that if the employer
deliberately makes an employee’s working conditions so
intolerable that the employee is forced into an involuntary
resignation, then the employer . . . is as liable for any illegal
conduct involved therein as if it had formally discharged the
28
aggrieved employee.” Young v. Southwestern Sav. and Loan
Assoc., 509 F.2d 140, 144 (5th Cir. 1975). In assessing
constructive discharge claims, we do not consider a plaintiff’s
subjective feelings about his employer’s actions. Rather, we
determine whether “a reasonable person in [the plaintiff’s] position
would be compelled to resign.” Steele v. Offshore Shipbuilding,
Inc., 867 F.2d 1311, 1317 (11th Cir. 1989); accord, e.g., Serrano-
Cruz v. DFI Puerto Rico, Inc., 109 F.3d 23, 26 (1st Cir. 1997)
(“We have long applied an ‘objective standard’ . . . .”); Kelleher v.
Flawn, 761 F.2d 1079, 1086 (5th Cir. 1985) (“[S]ubjective
impressions as to the desirability of one position over another
cannot control our decision.”) (quoting Lee v. Russell City Bd. of
Educ., 563 F.2d 1159, 1162 (5th Cir. 1977)). Applying this
doctrine, Doe might have refused his transfer, resigned, and then
sued for constructive discharge. Had he done so, however, he
would have had not only to meet a high threshold of adversity
(“intolerability”); he would also have had to rely solely on objective
29
factors to make his case. Instead of quitting his job, though, Doe
accepted the transfer and now seeks to prove that it was adverse
through evidence of his personal preference for
psychoeducational teaching. While our constructive discharge
precedents by no means control our decision in this case, it would
seem strange and inconsistent for us to apply an objective
standard where a plaintiff rejects a transfer, resigns, and sues, but
to apply a subjective standard where a plaintiff accepts a transfer
and sues. Absent some justification for such a dichotomy, we
decline to introduce such a confusing inconsistency into the law.
At the same time, our adoption of an objective standard for
claims of an adverse employment action is consistent with our
current use of objective standards regarding employers’ claims
and defenses. In the ADA context, for instance, we often inquire
as to whether an employer has made a “reasonable
accommodation” of its employee’s disability. In making this
determination, we do not ask whether an employer has made all
30
the accommodations it feels are appropriate, or whether an
employer has made all the accommodations that a disabled
plaintiff desires. See Stewart v. Happy Herman’s Cheshire
Bridge, Inc., 117 F.3d 1278, 1285 (11th Cir. 1997). Instead, we
decide whether a requested accommodation “would impose an
undue hardship on the employer.” Id. Similarly, we do not rely on
an employer’s “feelings” regarding a person’s disability. See H &
W Contracting, 102 F. 3d at 524. Nor do we consider the
subjective but unreasonable fear that a community may harbor
regarding teachers with HIV. Cf. Martinez, 861 F.2d at 1505-06(reversing an order segregating a child with AIDS from her
classmates); Arline, 480 U.S. at 284, 107 S. Ct. at 1129(disregarding “society’s accumulated myths and fears about
disability and disease”).16
16
We also note that the Supreme Court has interpreted the “terms, conditions, or
privileges of employment” language of Title VII to require a sexual harassment plaintiff to show
that her work environment is objectively hostile. See Harris v. Forklift Sys., Inc., 510 U.S. 17,
21, 114 S. Ct. 367, 370, 126 L. Ed. 2d 295 (1993).
31
Moreover, we have employed the adverse employment
action concept as a means to avoid requiring plaintiffs to prove
the subjective, discriminatory intent of an employer. Often, a
plaintiff claiming unlawful employment discrimination cannot
produce direct evidence of his employer’s intent. See Mayfield v.
Patterson Pump Co., 101 F.3d 1371, 1375 (11th Cir. 1996). In
order to allow plaintiffs to surmount this problem, the courts have
articulated a set of elements that a plaintiff may prove to establish
a circumstantial prima facie case of discrimination. See
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S. Ct.
1817, 1824, 36 L. Ed. 2d 668 (1973); Mayfield, 101 F.3d at 1375.
As we explained above, one of the elements that a plaintiff must
show to establish such a prima facie case is that he has suffered
an adverse employment action. See Carter, 870 F.2d at 582.
Were we to adopt Doe’s subjective test for adversity in this case,
we would create an odd situation in which a plaintiff could use the
McDonnell Douglas test not only to avoid having to prove directly
32
his employer’s discriminatory intent, but also to force his employer
to either disprove the plaintiff’s own subjective feelings or concede
an element of the plaintiff’s prima facie case.17 Though, again, the
McDonnell Douglas line of cases is not controlling, we are
hesitant to introduce unnecessary inconsistency and confusion
into employment discrimination law.18
Returning more specifically to the ADA context, we also note
that our requirement that a plaintiff must show, as part of his
17
For instance, consider a case in which a school involuntarily transferred a female
teacher from a seventh grade to an eighth grade class and then placed a male in her former
position. Even without direct evidence that the school harbored a gender-discriminatory intent,
the teacher could establish a prima facie circumstantial case by showing that (1) she was a
member of a protected class (women), (2) she was qualified to teach the seventh grade class, (3)
her transfer was an adverse employment action, and (4) a member of an unprotected class filled
her former position (the male teacher). Cf. Carter, 870 F.2d at 582. (stating the elements of a
prima facie circumstantial case). Under Doe’s view, the teacher’s subjective preference for her
former seventh grade class would be sufficient to prove that she had suffered an adverse
employment action, so the school would have either to produce evidence that she did not
subjectively prefer her former position or to concede this element. Thus, the McDonnell
Douglas test would excuse employees from producing direct evidence of their employers’
subjective intent but would require employers to produce such evidence of their employees’
subjective preferences.
18
In addition to rendering one element of the McDonnell Douglas test essentially moot, a
subjective standard would make the law less predictable for employers. Under an objective
standard, an employer can expect that it will not be liable for employment discrimination if it
does not constrain its employees’ careers. Under a subjective standard, however, an employer
cannot anticipate which employment actions a court will find to be adverse, because it cannot
always know what will make its employees “unhappy.”
33
prima facie case, that he has suffered an adverse employment
action would be essentially meaningless if we were to utilize a
subjective standard. In order for an honest plaintiff to go to the
trouble of suing his employer, he must be unhappy with some
action that his employer has taken. Given this basic fact, a
subjective standard would mean that no court would ever
seriously consider the adverse employment action prong of a
prima facie ADA case—we could just assume this element to be
satisfied in every case. Even if we did not assume away the
adversity requirement as a matter of course, a plaintiff could
always prove this part of his case by testifying that he was
unhappy with whatever employment action had brought him into
court; an employer could rarely rebut its employee’s statement of
his own subjective feelings.
Finally, we believe that the standard that we articulate today
will well serve the ADA’s goal of eliminating discrimination on
account of disability. See generally 42 U.S.C. § 12101 (“Findings
34
and purpose”). By evaluating claims from the perspective of a
reasonable person in the employee’s position, we will continue to
interpret the ADA to prohibit a wide range of job actions based on
an employee’s disabled status. Transfers that result in lesser pay,
responsibilities, or prestige19 will still be “adverse.” See, e.g.,
Baker 903 F.2d at 1519 (lesser pay); Collins, 830 F.2d at 704(lesser responsibilities); De la Cruz, 82 F.3d at 21 (lesser
prestige). So, too, will transfers that involve arduous travel or that
impede an employee’s professional growth or advancement. See,
e.g., Maddow, 107 F.3d at 852 (travel); De la Cruz, 82 F.3d at 21(professional growth); Torre, 42 F.3d at 831 n.7 (advancement).
In other words, our reasonable person standard will continue to
19
In at least two cases, the Seventh Circuit has stated or implied that loss of prestige did
not make a transfer adverse. See Flaherty, 31 F.3d at 457; Spring, 865 F.2d at 886. It is
somewhat unclear in these cases whether the court was holding that a loss of prestige was
outweighed by other factors, was not significant, or was irrelevant. See Flaherty, 31 F.3d at 457;
Spring, 865 F.2d at 886. Regardless, we believe that loss of prestige, either within an
organization or with regard to the general public, is an objective factor that a court should
consider as part of the reasonable person test. Cf. De la Cruz, 82 F.3d at 21. Beyond the loss of
prestige itself (a reasonable if egoistic employee goal much like salary or promotion),
diminishment of prestige may also affect an employee’s marketability, another significant
objective factor.
35
protect disabled employees from transfers that are a form of
demotion or that disrupt investment in education, training, or
seniority.
Turning to the specific facts of the present case, we are
unable to determine from the current record whether Doe has
suffered an adverse transfer. As we have explained, Doe’s
subjective preference for a psychoeducation position is not
relevant to our inquiry. Although we greatly admire Doe’s
commitment to teaching such tragically disordered children, we do
not consider the special meaning that he ascribes to his former
job.
The question that remains, then, is whether a reasonable
person in Doe’s position would have viewed as adverse the
requirement that Doe complete ten credit hours (over three years)
to obtain certification in interrelated teaching. To support his
argument that this transfer-induced obligation is adverse, Doe
cites Rodriguez v. Board of Educ. of Eastchester Union Free Sch.
36
Dist., 620 F.2d 362 (2d Cir. 1980). In that Title VII case, a school
district allegedly transferred a female, middle school, art teacher
to an elementary school as part of its policy of segregating female
art teachers into elementary education. See id. at 364-66. Prior
to her transfer, the teacher had not only had twenty years of
experience in teaching middle school art classes but had also
received a doctoral degree in art education; her doctoral thesis
was entitled “A Model Arts Program for the Middle School of
Eastchester School District Number 1.” See id. After examining
the school district’s action, the Rodriguez court concluded that the
teacher had suffered an adverse transfer because “substantially
uncontradicted evidence indicated that the art programs at the
elementary level were so profoundly different from those in the
junior high school as to render utterly useless her twenty years of
experience and study in developing art programs for middle
school children.” Id. at 366. This “severe professional . . .
37
trauma,” the court held, constituted an adverse, sex-based
interference with a condition or privilege of employment. See id.The facts of Doe’s case, however, are quite different. Unlike
the plaintiff in Rodriguez, Doe’s transfer does not substantially
obviate a specialized education; Doe does not have a bachelor’s
or higher degree that is less applicable to interrelated education
than it is to psychoeducation. Although Doe’s transfer would
disrupt his investment in his current Georgia certificate, his
transfer from a psychoeducational to an interrelated classroom is
not nearly as dramatic as Rodriguez’s move from a middle school
to an elementary school.20 In other words, Doe may not have
suffered the “severe professional trauma” evident in Rodriguez,
though his transfer undoubtedly represented a “personal” setback.
Still, Doe does not need to show that his transfer would
represent a “severe trauma” to a reasonable person in his
20
Although not mentioned in the Rodriguez opinion, such a transfer from a middle to an
elementary school might also be thought to involve a significant loss of prestige, and perhaps
long-term prospects for advancement in the art education field as well.
38
position. Instead, he needs only to show that his transfer was, on
the whole, objectively adverse. Any adversity must be material; it
is not enough that a transfer imposes some de minimis
inconvenience or alteration of responsibilities.21 See Crady, 993
F.2d at 136. Moreover, the fact that an employee must learn as a
result of a transfer does not mean that the transfer is per se
adverse. See Williams, 85 F.3d at 274. In Williams, for example,
the court held that a salesman’s transfer to a different product line
was not adverse, despite the fact that he had to learn more new
products than he would have if he had stayed put. See id.(concluding that the salesman’s loss of commission income while
he learned about new products did not render his transfer
21
It is important not to make a federal case out of a transfer that is de minimis, causing no
objective harm and reflecting a mere chip-on-the-shoulder complaint. However, it is equally
important that the threshold for what constitutes an adverse employment action not be elevated
artificially, because an employer’s action, to the extent that it is deemed not to rise to the level of
an adverse employment action, is removed completely from any scrutiny for discrimination. In
other words, where the cause or motivation for the employer’s action was clearly its employee’s
disability, a finding that the action does not rise to the level of an adverse employment action
means that the action is not scrutinized for discrimination. An artificially high threshold for
what constitutes an adverse employment action would undermine the purposes of the statute by
permitting discriminatory actions to escape scrutiny. We believe that the purposes of the statute
are appropriately served by requiring the fact finder to determine whether a reasonable person
would consider the action adverse under all the facts and circumstances.
39
adverse). As the Williams court observed, all transfers require
some learning, since they require employees to work with new
people or products and to assume new responsibilities. See id.Thus, any coursework requirements for Doe must rise to a level
that a reasonable person would deem materially adverse, taking
into account both the pros and cons of such required education.
In sum, Doe must demonstrate that a reasonable person in
his position would have found his transfer to be adverse under all
the facts and circumstances. Unfortunately, the district court has
not made sufficient findings with regard to any of these factors for
us to undertake a meaningful review. Therefore, we have decided
to remand the case to the district court for such proceedings as it
deems necessary for it to enter explicit findings of fact concerning
the allegedly adverse nature of Doe’s transfer.22 Once having
22
The district court should make relevant subsidiary findings of fact, as well as an
ultimate finding of fact as to whether a reasonable person in Doe’s position would have found
the transfer to be adverse under all the facts and circumstances. Without in any way limiting the
subject matter of appropriate findings, the following would seem to be relevant: what is entailed
in the coursework required for certification in the new position; would such additional
certification increase Doe’s career opportunities, and, if so, was such additional certification and
resulting increase in opportunities available to Doe in any event, or was this available to Doe
40
made these explicit findings, the district court should clearly
explain why it believes that a reasonable person in Doe’s position
would or would not have found the transfer to have been an
adverse employment action.
In determining whether Doe’s transfer was adverse, the
district court should not rely on its determination that the transfer
was involuntary. In saying this, we do not mean to disturb the
district court’s finding on this issue but rather to make clear that
the voluntary or involuntary nature of the transfer is not relevant to
the question of whether it was unlawfully adverse. Of course, a
finding that Doe’s transfer was purely voluntary would have been
dispositive in the School District’s favor; a transfer cannot be
“because of a disability” if it occurred as the result of an
employee’s own request. Cf. Stewart v. Board of Trustees of the
only because of the transfer; whether the District’s action would in effect limit Doe’s
opportunities in this school district to the teaching of interrelated classes, and/or foreclose other
opportunities, and, if so, whether the same would adversely affect Doe’s employment
opportunities or status within either this particular school district or the field of special education
generally, see 29 C.F.R. Pt. 1630, App. § 1630.5 (1998); and considering all of the relevant
subsidiary findings, whether a reasonable person in Doe’s position would consider the transfer to
be adverse.
41
Kemper County Sch. Dist., 585 F.2d 1285, 1289 (5th Cir. 1978)
(voluntary transfer not unlawful under Title VII); Hooper v.
Maryland, No. 94-1067, (5th Cir. Jan. 10, 1995); Devine v.
Thalhimers, No. 92-1084, (4th Cir. Oct. 16, 1992). The fact that
Doe’s transfer was involuntary, however, does not in any way
establish that it was legally adverse. Cf. Williams, 85 F.3d at 274(finding an “involuntary” transfer to be non-adverse). If a
reasonable person in Doe’s position would have viewed the
transfer as non-adverse, the district court should not consider
Doe’s subjective, personal preference for his prior position.
III. CONCLUSION
We review in this case an injunction under the ADA that
prohibits the School District from transferring Doe out of the
District’s psychoeducation program because of his infection with
HIV. To establish a prima facie case under the ADA, Doe must
prove that he has a disability; that he is otherwise qualified to
42
teach psychoeducation, with or without some reasonable
accommodation; and that he has suffered an adverse
employment action because of his HIV status (i.e., that the School
District has discriminated against him because of his disability).
To determine whether Doe is qualified, the district court
should have found and weighed the four factors explained in
Arline. The district court, however, failed to make explicit findings
of fact regarding any dangers that Doe’s illness might pose to
violent psychoeducation students. In addition, the district court
erred by applying a subjective standard for determining whether
Doe’s transfer was adverse. Moreover, because the district court
did not enter explicit findings of fact or conclusions of law with
regard to those aspects of Doe’s transfer that might render it
objectively adverse, we believe that it would be imprudent for us
to attempt to assess whether the School District subjected Doe to
an adverse employment action.
43
Therefore, we REVERSE the district court’s judgment,
VACATE the injunction, and REMAND the case to the district
court for further proceedings consistent with this opinion.
44