Smith v. Pulaski County Special School District
OPINION and ORDER: For the reasons stated, 13 Defendant's motion for summary judgment is granted. Pursuant to the judgment entered together with this order, this action is dismissed with prejudice. Signed by Judge Susan Webber Wright on 2/28/2017. (kdr)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
PULASKI COUNTY SPECIAL
NO: 4:16CV00574 SWW
OPINION and ORDER
Plaintiff Patricia Smith (“Smith”) brings this employment discrimination action against
her current employer, the Pulaski County Special School District (“PCSSD” or the “District”),
claiming that the PCSSD failed to grant her request for a transfer because of her race and age.
Before the Court is the PCSSD’s motion for summary judgment [ECF Nos. 13,14,15], Smith’s
response in opposition [ECF Nos. 20, 21], and PCSSD’s reply [ECF No. 22]. After careful
consideration, and for reasons that follow, the motion is granted.
Summary judgment is proper if the evidence, when viewed in the light most favorable to
the non-moving party, shows that there is no genuine issue of material fact and that the
defendant is entitled to entry of judgment as a matter of law. Fed. R. Civ. P. 56; Celotex Corp. v.
Catrett, 477 U.S. 371, 322 (1986). When a nonmoving party cannot make an adequate showing
on a necessary element of the case on which that party bears the burden of proof, the moving
party is entitled to judgment as a matter of law. Celotex, 477 at 322-23. A factual dispute is
genuine if the evidence could cause a reasonable jury to enter a verdict for either party. Miner v.
Local 373, 513 F.3d 854, 860 (8th Cir. 2008). “The mere existence of a factual dispute is
insufficient alone to bar summary judgment; rather, the dispute must be outcome determinative
under prevailing law.” Celotex, 477 U.S. at 331.
The following facts are undisputed. Smith has worked as a teacher for twenty-one years,
and she has worked for the PCSSD for fourteen years. On April 22, 2015, Smith completed a
transfer request form, seeking an intradistrict transfer from her teaching job at Maumelle Middle
School to a teaching position at Mills High School. Smith submitted the multiple-copy form to
her principal, and her principal signed it and returned the yellow copy to Smith. Smith did not
receive the transfer she had requested. Instead, PCSSD hired a white female, who was younger
than Smith, to fill the position at Mills High School.
Smith filed a discrimination charge with the Equal Employment Opportunity
Commission and received a notice of suit rights, dated May 13, 2016. On August 9, 2016, Smith
commenced this action, claiming that PCSSD discriminated against her on the basis of race and
age when it failed to grant her transfer request.
Smith alleges no facts indicating direct evidence of discrimination based on race or age;
thus her claims are properly evaluated under the burden-shifting framework of McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817 (1973). Under that framework, to create a
presumption of race or age discrimination based on failure to hire or failure to transfer, Smith
must show that (1) she belongs to a protected class; (2) she was qualified for and applied to an
available position; (3) she was rejected, which amounted to an adverse employment action; and
(4) similarly situated employees who were not members of her protected class were hired
instead. Higgins v. Gonzales, 481 F.3d 578, 584 (8th Cir. 2007)(quoting Davis v. KARK-TV, Inc.,
421 F.3d 699, 704 (8th Cir. 2005)). If Smith establishes a prima facie case, the burden shifts to
PCSSD to provide a legitimate, non-discriminatory reason for its action. Id. If PCSSD meets
that burden, then the burden shifts back to Smith to establish that the reasons proffered by
PCSSD are pretext for discrimination. Id.
In support of its motion for summary judgment, PCSSD first argues that Smith is unable
to show that she applied for a transfer to Mills High School. In the typical failure-to-hire case,
the plaintiff must show that she applied for an available position, but the application requirement
will be excused if the employer was aware of the plaintiff’s interest in a job notwithstanding her
failure to make a formal application. See Gentry v. Georgia-Pacific Corp., 250 F.3d 646, 652
(8th Cir. 2001). PCSSD presents evidence that teacher transfer request forms are processed
through the District’s human resource division (“HRD”). PCSSD’s written procedure states in
part as follows:
A formal request for transfer must be processed through the Human Resources
Division and be on file with the principal of the requested school. The principal will
acknowledge receipt by sending a signed copy of the transfer to the teacher.1
According to the District’s HRD director, HRD never received and therefore never
processed Smith’s transfer request.2 However, it is undisputed that Smith submitted her request
form to her principal, as she had done in the past, and PCSSD presents no evidence that Smith
was required to ensure that her principal submitted the form to HRD. Questions remain about
ECF No. 13-1, Ex. A.
ECF No. 13-1 (Burgess Aff.).
whether Smith followed the District’s formal procedure for requesting a transfer. And even if
Smith did not follow the procedure to the letter, it is undisputed that her principal was aware that
she was interested in transferring to an open position at Mills High School.
Second, PCSSD argues that Smith cannot show that she suffered adverse employment
action sufficient to sustain a discrimination claim. To establish a prima facie case of
discrimination based on race or age, Smith must show that she suffered an adverse employment
action that affected the terms or conditions of her employment. See Gibson v. Am. Greetings
Corp., 670 F.3d 844, 856 (8th Cir. 2012); Ledergerber v. Stangler, 122 F.3d 1142, 1144 (8th Cir.
1997). The Eighth Circuit has explained:
An adverse employment action is a tangible change in working conditions that
produces material employment disadvantage. Termination, reduction in pay or
benefits, and changes in employment that significantly affect an employee's future
career prospects meet this standard, but minor changes in working conditions that
merely inconvenience an employee or alter an employee's work responsibilities do
Spears v. Missouri Dep't of Corr. & Human Res., 210 F.3d 850, 853 (8th Cir.2000) (internal
citations omitted). A purely lateral transfer, one that involves only minor changes in working
conditions and no reduction in pay or benefits, does not amount to a demotion and cannot qualify
as materially adverse employment action. See Ledergerber v. Stangler, 122 F.3d 1142, 1144 (8th
Cir.1997). Similarly, the failure to grant a request for a purely lateral transfer does not amount to
a failure to promote and cannot constitute adverse employment action. See Pulley v. United
Health Grp. Inc., 945 F. Supp. 2d 1019, 1028 (E.D. Ark.), aff'd sub nom., Pulley v. UnitedHealth
Grp. Inc., 549 F. App'x 591 (8th Cir. 2013). It is undisputed that Smith sought a lateral transfer.
If Smith’s request had been granted, she would have continued to work as a teacher for the same
pay, but she would have performed her duties at a different campus.
Smith contends that the failure to grant her transfer request was materially adverse to her
because she cares for her granddaughter and the commute to Maumelle had become very
difficult for her. However, “a transfer involving only minor changes in working conditions and
no reduction in pay or benefits will not constitute an adverse employment action, otherwise
every trivial personnel action that an . . . employee did not like would form the basis of a
discrimination suit.” Ledergerber v. Stangler, 122 F.3d 1142, 1144 (8th Cir.1997) (internal
citation and quotations omitted); see also Fallon v. Meissner, 66 Fed. Appx. 348, 352, No. 021823, 2003 WL 1984696 (3rd Cir. Apr. 30, 2003)(holding that a transfer that increased commute
time did not amount to materially adverse action because it arose from the employee's individual
preferences was not job-related in the appropriate sense); Grube v. Lau Indus. Inc., 257 F.3d
723, 728 (7th Cir.2001)(altered work hours not adverse employment action where employer
denied a request to change shifts because family circumstances). The extent of Smith’s commute
to work is affected by the location of her home, which is unique to her and not a term or
condition of her employment, and Smith’s personal preference for a shorter commute is not a
proper basis for finding that she suffered an adverse employment action. The Court finds no
issues for trial as to whether Smith suffered actionable adverse employment action.
Accordingly, PCSSD is entitled to summary judgment in its favor.
For the reasons stated, Defendant’s motion for summary judgment [ECF No. 13] is
GRANTED. Pursuant to the judgment entered together with this order, this action is
DISMISSED WITH PREJUDICE.
IT IS SO ORDERED THIS 28TH DAY OF FEBRUARY, 2017.
/s/Susan Webber Wright
UNITED STATES DISTRICT JUDGE
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