                                  United States Court of Appeals,

                                          Eleventh Circuit.

                                            No. 97-8915.

                                   John DOE, Plaintiff-Appellee,

                                                 v.

                DEKALB COUNTY SCHOOL DISTRICT, Defendant-Appellant.

                                           July 17, 1998.

Appeal from the United States District Court for the Northern District of Georgia. (No. 1:96-cv-
2313-RCF), Richard C. Freeman, Judge.

Before ANDERSON and BIRCH, Circuit Judges, and PAINE*, Senior District Judge.

       BIRCH, Circuit Judge:

       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


   *
     Honorable James C. Paine, Senior U.S. District Judge for the Southern District of Florida,
sitting by designation.
        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 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



   1
   Like the district court, we have allowed the plaintiff-appellee to proceed under the
pseudonym "John Doe" in order to protect his privacy.

                                                   2
students might lead to transmission of HIV, the District transferred Doe to an "interrelated"

classroom at a different school in April 1995. The 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 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


                                                   3
in any case to retain his current certification, though this point is not clear in the current record.

Even without the 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

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


                                                  4
court offer any rationale for its assessment that Doe's transfer was "adverse."2 Whatever its

underlying reasoning, the district court 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 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).




   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
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, --- U.S. ----, 118 S.Ct. 2196, --- L.Ed.2d ---- (1998).

                                                   5
        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 1080, 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.

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.



   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.

                                                    6
        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, 107 S.Ct. 1123 (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.

        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.

Instead, we observed that the district court had failed to make factual findings regarding all four of




                                                   7
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 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


   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.
   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.

                                                  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 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,

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.




               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.

                                                   9
        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

        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. Procter & 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 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


   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 would
turn on whether it found Doe's transfer to have been voluntary or involuntary. See R8 at 605.

                                                  10
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 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




   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).
   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.2d 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.

                                                  11
(11th Cir.1997) (considering a reduction in income, but not mentioning the plaintiff's subjective

preferences, in ruling that a transfer was adverse).

        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 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


                                                 12
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 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 (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


   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.
   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

                                                   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 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

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 Douglas

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



McNely, 99 F.3d at 1078 (holding that an transfer can constitute an adverse employment action
under the ADA).
   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.

                                                  14
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.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. 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 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


   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.

                                                 15
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 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 Cty. 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 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


                                                  16
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 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

        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



   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).

                                                  17
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

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


   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

                                                  18
        Returning more specifically to the ADA context, we also note that our requirement that a

plaintiff must show, as part of his 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

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



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."
   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.

                                                    19
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 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. 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


                                                 20
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 ... 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 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,


   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.
   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

                                                  21
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 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 made these explicit findings, the district court should clearly explain why



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.
   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

                                                  22
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 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 (4th

Cir.1995); Devine v. Thalhimers, No. 92-1084 (4th Cir.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




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 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.

                                                  23
       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 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.

       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.




                                                  24
