Legal Memorandum: Lateral Transfer in PR

Issue: Under federal or Puerto Rico law, is a lateral transfer an adverse employment action?

Area of Law: Employee Law
Keywords: Adverse employment action; Lateral transfer
Jurisdiction: Federal, Puerto Rico
Cited Cases: 620 F.2d 362
Cited Statutes: None
Date: 05/01/2004

Generally, a lateral transfer (i.e., same job, same pay, different place), is not an adverse employment action, and without an adverse employment action, there can be no liability.  For example, in Marrero v. Goya of P.R., Inc., 304 F.3d 7 (1st Cir. 2002), the plaintiff was transferred to another department just days after she filed her charge with the EEOC.  Id. at 23.  She acknowledged that she had not been demoted and that neither her job description nor her pay had changed.  The plaintiff complained that she was subjected to “extreme supervision,” and had to undergo additional training and a period of probation. Id. at 23, 25.  The First Circuit concluded that the transfer was not an adverse employment decision.  It noted that “‘[t]he clear trend of authority is to hold that a purely lateral transfer that does not involve a demotion in form or substance, cannot rise to the level of a materially adverse employment action.'”  Id. at 23 (quoting Ledergerber v. Stangler, 122 F.3d 1142, 1144 (8th Cir.1977)). 

The court acknowledged that in some situations, such as when a transfer is to a position that uses none of the employee’s special abilities, e.g., Rodriguez v. Board of Education, 620 F.2d 362 (2d Cir. 1980), it may be deemed an adverse employment action. However, “[i]t is not enough that [the plaintiff] felt stigmatized and punished by the transfer.  A more ‘tangible change in duties or working conditions’ is needed before we can conclude […]

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