The U.S. Court of Appeals for the Fourth Circuit, not a court with a reputation of favoring plaintiffs in employment discrimination cases, issued a ruling in December 2005 that resulted in a “mixed bag” for the plaintiff in Webster v. Rumsfeld, No. 04-1739, unpublished opinion. In Webster, the employee brought two claims: a breach of a settlement agreement in a prior EEO case, and a claim that the changes in his work role, his lowered performance ratings, his failure to receive promotion recommendations and bonuses and his transfer from the night shift to the day shift were a result of race discrimination and retaliation for his prior EEO activity. The district court granted summary judgment on all counts and denied Webster’s motion to conduct discovery prior to the summary judgment ruling.

The Fourth Circuit reaffirmed the general rule that a plaintiff must be allowed to engage in discovery before a judgment can be issued against him. Denial of the plaintiff’s motion for discovery should only be denied, held the court, when the evidence sought in discovery would not create a genuine issue of material fact. This ruling is in contrast to the current practice of the EEOC Washington field office which as been issuing summary judgment decisions without giving complainants the opportunity for discovery. The court then went on to rule that summary judgment was appropriate for the breach of the settlement agreement claim because discovery would not create a genuine issue of fact as to whether the employer had breached the settlement agreement.

The court then went on to reverse the lower court’s ruling that Webster failed to establish any adverse employment action for his discrimination and retaliation claim. The court found that Webster had alleged adverse employment actions sufficient to at least pursue discovery into his claims. The court remanded the case back to the lower court for discovery.

However, the court did not reverse the granting of summary judgment on Webster’s transfer, albeit for different reasons than the lower court’s. The appeals court reiterated the rule that a reassignment can form the basis of a valid Title VII claim if the plaintiff can show that the reassignment had some significant detrimental effect, and thus disagreed with the lower court that Webster had not alleged an adverse employment action. However, after noting that 18 employees were transferred to day shift due to decreased work load, the employees were offered the opportunity to object to the transfer on hardship grounds, and Webster did not object, the court went on to dismiss this claim because “even if Webster could demonstrate that the loss of his night shift differential occurred and that it was an adverse employment action, he cannot demonstrate that he was singled out and transferred to the day shift in retaliation for his engaging in protected activities.”

* This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman & Kaplan, P.C., go to http://www.passmanandkaplan.com.