     06-4930-cv
     Beyer v. County of Nassau

 1                               UNITED STATES COURT OF APPEALS
 2
 3                                    FOR THE SECOND CIRCUIT
 4
 5                               ____________________________________
 6
 7                                         August Term, 2007
 8
 9   (Argued: January 28, 2008                                              Decided: April 23, 2008)
10
11                                       Docket No. 06-4930-cv
12
13                               ____________________________________
14
15                                         NATALIE BEYER,
16
17                                         Plaintiff-Appellant,
18
19                                                – v. –
20
21     THE COUNTY OF NASSAU, NASSAU COUNTY POLICE DEPARTMENT, HERBERT
22   FAUST, Chief, in his official and individual capacity, SCOTT WANLASS, Deputy Inspector, in
23    his official and individual capacity, JAMES GRANELLE, Detective Lieutenant, in his official
24      and individual capacity and WILLIAM WILLET, Police Commissioner, in his official and
25                                           individual capacity,
26
27                                        Defendants-Appellees.
28
29                               ____________________________________
30
31                      Before: WALKER, CALABRESI, and RAGGI, Circuit Judges.
32
33                               ____________________________________
34
35           Appeal from an Order of the United States District Court for the Eastern District of New
36   York (Irizarry, J.) granting summary judgment to Defendants-Appellees on Plaintiff-Appellant’s
37   federal and state claims of employment discrimination because of the absence of an adverse
38   employment action. We hold that the District Court erred in concluding that the repeated denial
39   of Plaintiff’s transfer requests was, as a matter of law, not an adverse employment action.
40   Accordingly, the grant of summary judgment is VACATED and this case is REMANDED to the
41   District Court for further proceedings consistent with this opinion.

                                                    1
 1          _________________________
 2
 3                                  RICK OSTROVE, Leeds Morelli & Brown, P.C., Carle Place,
 4                                  N.Y., for Plaintiff-Appellant.
 5
 6                                  LORNA B. GOODMAN, County Attorney of Nassau County
 7                                  (Dennis J. Saffran, Appeals Bureau Chief, of counsel), Mineola,
 8                                  N.Y., for Defendants-Appellees.
 9                                  _____________________________________
10

11   CALABRESI, Circuit Judge:

12          Plaintiff-Appellant Natalie Beyer (“Beyer”) contends that she was subjected to gender

13   discrimination in her place of employment, in violation of Title VII of the Civil Rights Act, 42

14   U.S.C. §§ 2000e-2000e-17, 42 U.S.C. §§ 1983, 1985, 1986, and the New York State Human

15   Rights Law, N.Y. Exec. Law § 296, when her requests for a transfer to a different unit were

16   repeatedly denied. By Order dated September 25, 2006, the United States District Court for the

17   Eastern District of New York (Irizarry, J.) granted summary judgment in favor of Defendants-

18   Appellees County of Nassau, Nassau County Police Department (the “Department”), Herbert

19   Faust, Scott Wanlass, and William Willet (collectively, “Defendants”). Beyer now appeals,

20   arguing that the District Court used an incorrect standard of law to evaluate her claim and that the

21   District Court erred in finding that no adverse employment action had occurred. For the reasons

22   explained below, we vacate the District Court’s grant of summary judgment and remand this case

23   to the District Court for further proceedings consistent with this opinion.

24   I.     Background

25   A.     The Alleged Adverse Employment Actions

26          Construed in the light most favorable to Beyer, the facts in the record are as follows:



                                                      2
 1             Natalie Beyer, a police detective, has a strong scientific background (a B.S. in Chemistry

 2   and an M.A. in Forensic Science). Accordingly, in 1988, the year after she joined the Nassau

 3   County Police Department, Beyer was assigned to the Serology Section, where she analyzed

 4   blood and other bodily fluids recovered from crime scenes.

 5             Over the course of the next fourteen years, Beyer observed a “progressive outsourcing” of

 6   the Serology Section’s work, as well as a failure to update the Section with current equipment

 7   and modern technology. In 1989 or 1990, she noticed that the Department had begun sending out

 8   the DNA analysis that the Serology Section had previously performed. By 1993, the Department

 9   stopped accepting new DNA casework; and by 2001 or 2002, the Department was sending rape

10   kits and urine stains for outside analysis. Defendants do not dispute this decline in the scientific

11   work of the Serology Section. Rather, they confirm it. An affidavit from then-Deputy Chief of

12   Detectives Paul A. Tully explains that outsourcing was necessary because, by 1993, the Serology

13   Section was out of step with federal testing protocols and found it prohibitively costly to stay

14   current with changes in DNA technology and methods. By November 1999, Beyer heard

15   “rumors and discussions about the possible closure” of the Section. Apparently, these rumors

16   had their origins in an agreement between the Detective Union and the Department, which, in

17   allowing for the elimination of ten detective positions, specifically referenced the Serology

18   Section. Meanwhile, another Section of the Department, the Latent Fingerprint Section (“LFS”),

19   was becoming an increasingly attractive assignment for officers interested in scientific police

20   work.1 LFS detectives were using rapidly advancing scientific techniques and working with

21   “state of the art computer systems”; “none of the fingerprint work was being outsourced.”


     1
         Police officers in the LFS compare and identify fingerprints found at crime scenes.

                                                        3
 1          In November 1999, Beyer applied for a posted job opening in the LFS, for which she was

 2   indisputably qualified. Moving to the LFS would have been a lateral transfer, involving the same

 3   pay and title; nevertheless, Beyer points to various reasons why a factfinder could conclude that,

 4   by that time, the LFS position was more “prestigious” and highly desirable. It would have gotten

 5   an officer out of a Section that was languishing, and it offered opportunities for advanced

 6   training in forensic science, as well as access to new technology and techniques. Beyer’s direct

 7   supervisor interviewed her for the position and highly recommended her. Captain Scott Wanlass,

 8   who was in charge of hiring, firing, and granting promotions at the Department, also interviewed

 9   her and recommended that she be given the position, so long as a suitable replacement could be

10   found for her in Serology. Nonetheless, the Department denied Beyer’s request and gave the

11   position to a male.

12          In November 2000, Beyer applied for another posted job opening in the LFS. Again, she

13   was indisputably qualified for the job. And as before, she was highly recommended by her direct

14   supervisor and endorsed by Captain Wanlass, who told her that this time he would approve her

15   transfer without requesting a suitable replacement for her in her current Section. Beyer also

16   interviewed with Lieutenant James Granelle, the supervisor of the LFS. Lieutenant Granelle

17   indicated that the opening in the LFS likely included between three and five positions. But, when

18   Beyer subsequently asked Lieutenant Granelle about her chances, he told her that she was “[w]ay

19   on the bottom [of the list]”; “[t]here [we]re 17 people more qualified.” Lieutenant Granelle

20   further told her, when she objected to his characterization of her qualifications, that

21   “qualifications aren’t everything”; “[w]e have to take care of the boys. . . . [W]e need to take




                                                       4
 1   care of the guys that did the right thing for the job for the last ten years.” A month later, Beyer

 2   learned that four males and no females had been given the LFS positions.

 3          In or around May 2002, Beyer applied a third time for a posted opening in the LFS, but

 4   the Department did not process her paperwork.

 5   B.     The Complaint and Subsequent Events

 6          On June 6, 2002, Beyer filed the complaint that is the basis for this action, alleging that

 7   Defendants discriminated against her on the basis of her sex. About six months later, the

 8   Department notified Beyer that it intended to close the Serology Section and outsource its work

 9   completely. Beyer asked to be placed in the LFS, but was instead assigned to a squad in the

10   Seventh Precinct, where she performs arrests, takes statements, interviews witnesses and

11   complainants, and processes paperwork. She claims that she now has no occasion to utilize her

12   scientific knowledge and background.

13   C.     The Grant of Summary Judgment

14          After discovery concluded, Defendants moved for summary judgment, pursuant to

15   Federal Rule of Civil Procedure 56, on the ground that Beyer failed to show an adverse

16   employment action. Adopting the Report and Recommendation of Magistrate Judge Arlene R.

17   Lindsay (“MJ Lindsay”), the District Court granted Defendants’ request and dismissed this action

18   in its entirety. See Beyer v. County of Nassau, NO. 02 CIV. 3310, 2006 WL 2729196 (E.D.N.Y.

19   Sept. 25, 2006).

20   II.    Discussion

21   A.     Standard of Review




                                                       5
 1          We review a district court's grant of summary judgment de novo. Summary judgment is

 2   appropriate “if the pleadings, the discovery and disclosure materials on file, and any affidavits

 3   show that there is no genuine issue as to any material fact and that the movant is entitled to a

 4   judgment as a matter of law.” Fed. R. Civ. P. 56(c). A dispute about a “genuine issue” exists

 5   for summary judgment purposes where the evidence is such that a reasonable jury could decide in

 6   the non-movant’s favor. Guilbert v. Gardner, 480 F.3d 140, 145 (2d Cir. 2007). A court

 7   reviewing a motion for summary judgment must “construe the facts in the light most favorable to

 8   the non-moving party and must resolve all ambiguities and draw all reasonable inferences against

 9   the movant.” Dallas Aerospace, Inc. v. CIS Air Corp., 352 F.3d 775, 780 (2d Cir. 2003).

10   B.     Beyer’s Title VII Claim

11   1.     The Governing Law

12          Title VII of the Civil Rights Act prohibits an employer from discriminating against an

13   individual with respect to her “compensation, terms, conditions, or privileges of employment”

14   because of her sex. 42 U.S.C. § 2000e-2(a)(1) (2000). A plaintiff seeking relief under Title VII

15   has the burden of making out a prima facie case of discrimination. Collins v. N.Y. City Transit

16   Auth., 305 F.3d 113, 118 (2d Cir. 2002). This requires her to show that: “(1) she is a member of

17   a protected class; (2) she applied and was qualified for a job for which the employer was seeking

18   applicants; (3) she suffered an adverse employment action; and (4) the circumstances

19   surrounding that action permit an inference of discrimination.” Williams v. R.H. Donnelley

20   Corp., 368 F.3d 123, 126 (2d Cir. 2004) (citing McDonnell Douglas Corp. v. Green, 411 U.S.

21   792, 802 (1973)). We have characterized this burden as “de minimis”: it is “neither onerous, nor

22   intended to be rigid, mechanized or ritualistic.” Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d


                                                      6
 1   456, 467 (2d Cir. 2001) (internal quotation marks and citations omitted). Nonetheless, a

 2   plaintiff’s case must fail if she cannot carry this preliminary burden. Williams, 368 F.3d at 126.

 3           Defendants have not disputed, for the purposes of summary judgment, that Beyer has

 4   established the first, second, and fourth prongs of her prima facie case. Indeed, they concede that

 5   the facts alleged, if credited, would permit a reasonable trier of fact to conclude that gender bias

 6   was the reason that Beyer was repeatedly denied transfers to LFS. Nevertheless, they maintain

 7   that no reasonable factfinder could conclude that these denials constituted an adverse

 8   employment action.

 9           Employment actions that we have “deemed sufficiently disadvantageous to constitute an

10   adverse employment action include ‘a termination of employment, a demotion evidenced by a

11   decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly

12   diminished material responsibilities, or other indices . . . unique to a particular situation.’”

13   Williams, 368 F.3d at 128 (quoting Galabya v. N.Y. City Bd. of Educ., 202 F.3d 636, 640 (2d Cir.

14   2000)). A denial of a transfer may also constitute an adverse employment action, but we require

15   a plaintiff to proffer objective indicia of material disadvantage; “subjective, personal

16   disappointment[]” is not enough. Id.

17   2.      The District Court Applied the Correct Standard of Law

18           Beyer’s first argument on appeal is that the District Court applied the wrong standard of

19   law to evaluate her Title VII claim. She maintains that an adverse employment action occurs

20   whenever an employer denies an employee’s request to transfer to a job that is materially and

21   significantly different from the employee’s current job. We have never so held. As the District

22   Court correctly observed, we require objective indicia that the transfer denial “created a


                                                        7
 1   materially significant disadvantage” in the working conditions of the aggrieved employee.

 2   Williams, 368 F.3d at 128.

 3   3.     The District Court Erred in Concluding that Beyer Failed to Make Out a Prima Facie
 4          Case
 5
 6          Beyer’s second argument – that she adduced sufficient evidence of an adverse

 7   employment action to survive summary judgment – is more persuasive. Defendants submit that,

 8   because a Serology assignment required greater scientific training than an LFS posting, it cannot

 9   be viewed as objectively disadvantageous. While the argument merits consideration by a

10   factfinder at trial, on the record before us, we cannot reach that conclusion as a matter of law.

11   Construing the facts in Beyer’s favor and drawing all reasonable inferences against the

12   defendants, the evidence shows (1) that between 1989 or 1990 and 2002, the Department

13   outsourced more and more of the Serology Section’s work; (2) that during the same period, the

14   Serology Section was not adapting to the latest technology in the field or receiving new

15   equipment; and (3) that around the time Beyer first applied to transfer to the LFS, there were

16   “rumors” of the Section’s eventual closure; these rumors gained credence both from the

17   agreement to eliminate detectives’ positions with specific reference to Serology, and from the

18   fact that, at the time of Beyer’s second transfer request, Captain Wanlass said that he would

19   endorse Beyer’s transfer without asking for a replacement for her in Serology (earlier he had

20   deemed a replacement necessary). These are all objective indications that, by the time Beyer

21   applied to transfer to the LFS, the Serology Section had become a disadvantageous place in

22   which to work. Other evidence, meanwhile, suggests that, for an officer pursuing a career in

23   police forensics, being placed in the LFS was both highly desirable and objectively preferable to



                                                       8
 1   working in the Serology Section: (1) at least seventeen people applied for the November 2000

 2   posting, and the supervisor of the unit viewed the jobs as a way of “tak[ing] care of the guys”

 3   who had done “the right thing”; (2) assignment to the LFS entailed using up-to-date equipment

 4   and learning new skills; and (3) none of the Department’s latent fingerprint work was being

 5   outsourced.

 6           On the basis of these facts, which we must accept as true, we conclude that a reasonable

 7   jury could find that the LFS position Beyer sought was objectively and materially better than the

 8   position she occupied and that, accordingly, an adverse employment action had occurred. See

 9   Alvarado v. Texas Rangers, 492 F.3d 605, 614 (5th Cir. 2007) (holding that denial of a transfer

10   may be the objective equivalent of the denial of a promotion, and noting that “if the position

11   sought was objectively better, then the failure to award the position to the plaintiff can constitute

12   an adverse employment action,” “even if the new position would not have entailed an increase in

13   pay or other tangible benefits.”); Piercy v. Maketa, 480 F.3d 1192, 1205 (10th Cir. 2007) (finding

14   summary judgment improperly granted where there was evidence that the desired transfer was

15   not “a truly ‘lateral transfer’” as it would be less arduous and stressful than the plaintiff’s current

16   job and would increase the plaintiff’s opportunity for obtaining additional job and leave

17   flexibility); Williams v. R.H. Donnelley Inc., 199 F. Supp. 2d 172, 178 (S.D.N.Y. 2002), aff’d,

18   368 F.3d 123 (2d Cir. 2004) (“Where the change in position would have resulted in a significant

19   change in duties and could potentially lead to increased opportunities for advancement, courts

20   have held a failure to transfer to constitute an adverse employment action.” (internal quotation

21   marks and citation omitted)).




                                                        9
 1          Our holding in Williams is not to the contrary, and indeed supports our conclusion.

 2   Williams involved a Sales Training Manager living in Purchase, New York, who alleged that her

 3   employer discriminated against her on the basis of sex and race when it refused to transfer her to

 4   an Account Executive position in Las Vegas, the place from which she had recently relocated. In

 5   concluding that the plaintiff failed to establish an adverse employment action at the prima facie

 6   stage, we emphasized that the transfer sought would have resulted in a reduction in pay and a

 7   demotion, and that the plaintiff considered the denial of her transfer request “adverse” only

 8   because “she wished to return to Las Vegas, where she still maintained a home.” Williams, 368

 9   F.3d at 128. In other words, unlike Beyer, the plaintiff in Williams offered no evidence from

10   which a reasonable juror could conclude that the position to which she sought a transfer would

11   have involved objective and significant improvements in her conditions of employment; rather,

12   the evidence showed no more than “subjective, personal disappointment[].” Id.

13          Our holding today is also consistent with, and finds support in, our cases involving

14   involuntary transfers. In those cases, we have held that an adverse employment action can exist

15   when an employee’s new assignment is “materially less prestigious, materially less suited to his

16   skills and expertise, or materially less conducive to career advancement.” Galabya, 202 F.3d at

17   641. Thus, in De La Cruz v. New York City Human Resources Administration Department of

18   Social Services, 82 F.3d 16, 21 (2d Cir. 1996), we concluded that a transfer from a job with

19   prestige and opportunity for professional growth to a job with less prestige and little opportunity

20   for growth could constitute an adverse employment action, even though the employer considered

21   the jobs equal in status. In addition, in Patrolmen's Benevolent Association of the City of New

22   York v. City of New York, 310 F.3d 43, 51-52 (2d Cir. 2002), we found that a transfer that


                                                     10
 1   resulted in the plaintiff’s inability to work in his area of expertise and his subjection to abusive

 2   comments from community members could be considered adverse. A similar logic applies to

 3   denials of transfer requests. The denial of a transfer may constitute an adverse employment

 4   action at the prima facie step of discrimination analysis when, as here, a plaintiff adduces

 5   sufficient evidence to permit a reasonable factfinder to conclude that the sought for position is

 6   materially more advantageous than the employee’s current position, whether because of prestige,

 7   modernity, training opportunity, job security, or some other objective indicator of desirability.

 8   C.     Beyer’s Other Federal and State Discrimination Claims

 9          The District Court granted Defendants’ motion for summary judgment in its entirety,

10   observing that where Title VII is not violated, neither is the New York State Human Rights Law

11   or §§ 1983, 1985, and 1986. Because we conclude that summary judgment was improperly

12   granted on Beyer’s Title VII claim, we remand all Beyer’s claims for further proceedings.

13   III.   Conclusion

14          Title VII gives employees the statutory right to compete on an equal basis without regard

15   to gender for anything worth competing over. Its language “evinces a congressional intent to

16   strike at the entire spectrum of disparate treatment of men and women in employment.” Meritor

17   Sav. Bank, FSB v. Vinson, 477 U.S. 57, 64 (internal quotation marks and citation omitted). We

18   have no difficulty concluding that a denial of an employee’s transfer request has a place on that

19   spectrum. We also recognize, however, that Title VII does not provide redress for every “minor,

20   ministerial stumbling block.” Wanamaker v. Columbian Rope Co., 108 F.3d 462, 466 (2d Cir.

21   1997). We hold today that an employee has established the “adverse employment action”

22   necessary to make out a prima facie case when she has proffered evidence from which a


                                                       11
1   reasonable trier of fact could conclude that the transfer sought and denied would have involved

2   an objective and significant improvement in the terms, conditions, or privileges of her

3   employment. Because a reasonable jury could conclude that Beyer has shown an adverse

4   employment action, we vacate the grant of summary judgment to Defendants and remand this

5   case to the District Court for further proceedings consistent with this opinion.




                                                     12
