Karen J. Kruger, Senior Assistant County Attorney and Counsel to the Sheriff, Harford County, Maryland
ne of the chief responsibilities of law enforcement managers is the deployment and assignment of police officers. To fight crime, respond to community needs, and ensure officer safety, an agency must assign to each of its sectors the proper number and type of officers. The chief of police has the overall responsibility for the operation of the agency, and making assignments is a management prerogative.
Courts Recognize Need to Reassign and Transfer Police Employees
Because a law enforcement agency requires staffing 24 hours a day, every day of the year, and must be able to adapt to emergencies and changing conditions, management has the authority to subject officers to changes in schedules and assignments. In cases where employees have challenged the legality of a reassignment or a transfer, courts have ruled that the agencies were acting lawfully as long as the agencies had properly documented the legitimate reasons for the action.
Legitimate reasons for making transfers and reassignments in law enforcement agencies include deploying officers in response to community needs; improving officer efficiency and finding the right person to do a particular job; compensating for the abolishment of positions or reductions in staff; fostering employee development; resolving personality disputes; addressing unexcused absences, inability to perform, or failure to meet performance standards; rewarding good performance; and resolving a grievance.
In many cases, individual officers have a constitutionally protected property interest in their continued employment, but no officer has a constitutional right to any particular duty assignment or location or shift.1 In Atterberry v. Sherman2 the U.S. Court of Appeals for the Seventh Circuit affirmed that a change in duty assignment does not in and of itself deprive an employee of a property interest. In Atterberry an employee who was reassigned to “lesser but still meaningful duties” challenged the reassignment as wrongful. The court ruled in favor of the employer because the employee retained both his job classification and his pay rate and thus suffered no harm to his property rights.
Courts Have Ruled Retaliatory Transfers and Reassignments Are Unlawful
Officers and unions consistently attack transfers and reassignments as unfair, punitive, 3 or even discriminatory. Accordingly, law enforcement managers must exercise this power judiciously. Two recent court decisions remind managers that it is unlawful to impose personnel actions for retaliatory or punitive reasons.
In Burlington Northern & Sante Fe Ry. Co. v. White,4 a discrimination case brought under Title VII of the Civil Rights Act, an employee alleged that her employer retaliated against her for complaining about her supervisor’s sexual harassment by reassigning her from forklift duty to standard track laborer tasks and suspending her without pay before reinstating her.
For the first time in a Title VII case, the U.S. Supreme Court determined that, one, the antiretaliation provision of Title VII,5 unlike the substantive provision,6 is not limited to discriminatory actions that affected the terms and conditions of employment, and, two, the employee needed to show that a reasonable employee would have found the challenged action materially adverse.
The Court found that in this case there was a sufficient evidentiary basis to support the jury’s verdict because, one, a jury could reasonably conclude that the reassignment of responsibilities would have been materially adverse to a reasonable employee, even though the former and present duties fell within the same job description, and, two, it was reasonable for the jury to conclude that the 37-day suspension without pay was materially adverse, even though the suspension had been rescinded.7
In Storey v. Illinois State Police, et al.,8 a U.S. district court case that was decided after Burlington, Trooper Storey alleged that her transfer to an inferior assignment where “she had very little work to do” was humiliating and was imposed in retaliation for her having filed a sexual harassment complaint.9 The court noted that a “more subtle form of retaliation is the deliberate denial of career opportunities . . . [as] through a transfer to a less prestigious unit or a change in responsibilities that a reasonable employee would consider a setback. These actions can constitute, given the appropriate context, materially adverse actions.”
In making a challenge to a transfer or reassignment in such cases, the officer has the burden of proving that the personnel action was punitive or discriminatory in nature.10 In Treadwell v. Illinois Sec’y of State11 an employee claimed that his transfer was discriminatory. The court held in favor of management because the employee failed to present evidence that an internal complaint that he made led to the transfer.
Employees Have Claimed Transfer Was Retaliation for Protected Speech
Miller v. Jones12 presents a somewhat different scenario. Here, a Milwaukee police officer claimed that he was transferred from the Community Services Division to a less desirable assignment because of his critical comments about some actions taken by the chief of police. In order for Miller to establish that the chief transferred him in retaliation for his speech, he had to prove that the speech was protected by the First Amendment13 and that retaliation for his statements was a substantial or motivating factor in the decision to transfer him.14
In Miller the court found that the officer’s speech was constitutionally protected. Moreover, the undisputed facts showed that although the chief explained that he had transferred Miller because he had “overstepped his duties with [the Police Athletic League],” Miller’s performance evaluations reflected no such problems. The court stated that the evaluations “brought [the chief’s] comment and thus the motivation for [Miller’s] transfer into serious doubt.”15 Accordingly, the chief was not entitled to summary judgment in his favor based on qualified immunity.
Yet another case from the U.S. Court of Appeals for the Seventh Circuit, Mills v. City of Evansville, Indiana,16 decided after Garcetti v. Ceballos, considered the relationship between constitutionally protected speech and reassignment. In Mills the court found that Sergeant Brenda Mills’s comments at a meeting were protected by the First Amendment, but that the agency’s actions in later transferring her to another assignment were permissible.
Judge Easterbrook noted that “[p]ublic employers must be able to change assignments in response to events (including statements) that reveal whether employees will be faithful agents of the decisions made by the politically accountable managers.”17 The court astutely observed that “[i]f a chief of police can’t fire or demote sergeants whose view simply [sic] less than enthusiastic support, what can he do to ensure faithful implementation? The answer must be a lateral transfer.”18
Lesson: Transfer and Reassign Only for Legitimate, Verifiable Reasons
Miller, Mills, and Storey indicate that courts are analyzing transfer and reassignment cases with seemingly more scrutiny. Law enforcement managers should tread carefully when considering whether a transfer or reassignment is the best action to take with respect to an employee who brings other issues to the table. If so, management must articulate its reasons for the personnel action, distinguishing it from other underlying issues, and be able to verify the reasons given. Of course, consultation with the agency’s legal advisor—before taking the action—is a must. ■
1Leonard v. Suthard, 927 F.2d 168, 170 (4th Cir. 1991) (Property interest in the job does not extend to any particular duties or any particular location).
2453 F. 3d 823 (7th Cir. 2006).
3A minority of states, most notably California, have held that a transfer per se is disciplinary in nature and thus requires a hearing. See Cal. Govt. Code, sec. 3303(j): “No public safety officer shall be loaned or temporarily reassigned to a location or duty assignment if a sworn member of his or her department would not normally be sent to that location or would not normally be given that duty assignment under similar circumstances.”
4126 S. Ct. 2405 (2006).
542 U.S.C. 2000e-3(a).
642 U.S.C. 2000e-2(a).
7126 S. Ct. 2417-18.
82006 U.S. Dist. Lexis 57970.
9Storey alleged numerous other bases for her retaliation claim, discussion of which are beyond the scope of this column, but they make for interesting reading and study.
10See Holcomb v. City of Los Angeles, 210 Cal. App. 3d 1560 (1989).
11455 F. 3d 778 (7th Cir. 2006).
12444 F. 3d 929 (7th Cir. 2006).
13For a detailed examination into what type of speech made by public employees is in fact protected by the Constitution, see Garcetti v. Ceballos, 126 S. Ct. 1951 (2006). But see Schad v. Jones, 415 F.3d 671, 675 (7th Cir. 2005), cert. denied, 126 S. Ct. 2350 (2006) (Matters of police protection and public safety are generally topics of public concern).
14444 F. 3d 935.
15444 F. 3d 933.
16452 F. 3d 646 (7th Cir. 2006).
17452 F. 3d 648.
18452 F. 3d 648.