# Diane LEDERGERBER, Appellant, v. Gary STANGLER; Carmen Schultze, Appellees

> Court of Appeals for the Eighth Circuit · October 7, 1997 · 122 F.3d 1142

URL: https://www.frixlaw.com/law-library/cases/9490589

## Case

- **Full name:** 74 Fair empl.prac.cas. (Bna) 1544, 71 Empl. Prac. Dec. P 44,974 Diane Ledergerber v. Gary Stangler Carmen Schultze
- **Court:** Court of Appeals for the Eighth Circuit
- **Decided:** October 7, 1997
- **Citations:** 122 F.3d 1142
- **Precedential status:** Published
- **Opinion:** Dissent by Beam
- **Judges:** Arnold, Ross, Beam
- **Cited by:** 172 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9490589

## How later opinions describe it (automated extraction)

- stating in response to a race discrimination claim that a purely lateral transfer that does not involve demotion in form or substance is not a materially adverse employment action
- stating that under Title VII, a claim for discrimination must relate to an adverse employment action that materially affected the terms or conditions of employment
- holding that only adverse employment actions that “rise to the level of an ultimate employment decision [are] intended to be actionable under Title VII”
- noting that the “clear trend of authority is to hold 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”
- finding that a change in working conditions that causes no materially significant disadvantage is insufficient to establish adverse employment action

## Opinion text

BEAM, Circuit Judge,
dissenting.
The ultimate determination of adverse employment action is a question of fact for the jury. Davis v. City of Sioux City, 115 F.3d 1365, 1369 (8th Cir.1997). I disagree with the court’s conclusion that no reasonable jury could find that Diane Ledergerber has suffered from an adverse employment action, and therefore dissent.
In Harlston, we properly shied away from allowing a plaintiff’s subjective perception about a reassignment to control whether a change is materially adverse. 37 F.3d at 382. I do not believe, however, that Harlston stands for the proposition that an employer can avoid Title VII liability by characterizing all changes in duties and treatment as qualitative and, therefore, non-adverse. In Davis , the defendant argued that the plaintiffs transfer to a different job at a higher salary was not adverse. We observed that “[t]he jury apparently put more weight on Davis’s evidence that the new position lacked supervisory status, had fewer opportunities for salary increases, and offered Davis little opportunity for advancement. The jury was free to credit this evidence.... ” 115 F.3d at 1369 . Ledergerber, like Davis , has presented sufficient evidence from which a reasonable jury could find that she has suffered an adverse employment action.
The court views the only harm worked by Ledergerber’s transfer as a loss of status and prestige. First, I cannot accept the premise that being identified as a racist by one’s employer “cause[s] no materially significant disadvantage.” Harlston, 37 F.3d at 382. Furthermore, we have previously held that, under certain circumstances, the loss of public respect and stature can constitute adverse employment action. In Goodwin v. Circuit Court of St. Louis County, Mo., 729 F.2d 541, 547 (8th Cir.1984) the court held that a transfer, with the same pay, from a position as a hearing officer to that of a staff attorney was adverse because the new position was less prestigious. The loss of intangible status has been deemed by other circuits, particularly in institutional employment settings like the DFS, to be legally sufficient to state a claim of adverse employment action. See, e.g., Bryson v. Chicago State Univ., 96 F.3d 912 (7th Cir.1996) (loss of unofficial “in-house title” and membership on university committees, without change in duties, rank or salary, constitutes adverse employment action); de la Cruz v. New York City Human Resources Admin., 82 F.3d 16 (2d Cir.1996) (transfer from an elite division to a less prestigious unit, even though two units are officially lateral, constitutes adverse employment action); Vojvodich v. Lopez, 48 F.3d 879 (5th Cir.1995) (in a section 1983 claim, transfer from position of Narcotics Lieutenant to Communications/Dispatching Lieutenant constitutes adverse employment action because new position was “less prestigious” and “offered less job satisfaction”), cert. denied, - U.S. -, 116 S.Ct. 169 , 133 L.Ed.2d 111 (1995).
Moreover, loss of status is not the only detriment Ledergerber claims to have suffered. There is evidence in the record that Ledergerber’s new subordinates were comprised of less desirable “problem employees” that the other supervisors did not want on their staff. Appellant’s App. at 136, 139-40. Ledergerber’s new subordinates work in the “Claims and Restitution Unit” rather than dealing with casework and applications, and *1146 this substantive change has her in charge of employees in an area with which she is not familiar. Appellant’s App. at 136. Ledergerber reports that her transfer has created the perception that she is a racist, which, in turn, has resulted in more complaints by subordinates and has limited her opportunities for promotion. Appellant’s App. at 137, 140-41. Finally, and perhaps most tellingly, when the caseworkers initially filed their charges against Ledergerber, they requested that Ledergerber be “terminated or transferred.” Appellant’s App. at 37 (emphasis added). From this, an independent investigator used by DFS to investigate the original charges of discrimination characterized the action taken against Ledergerber as disciplinary. Appellant’s App. at 107. Even internal departmental correspondence refers to the shift in staff away from Ledergerber as “corrective action for Ms. Ledergerber.” Appellant’s App. at 61 and 71.
There is a controverted issue of fact as to whether Ledergerber suffered an adverse employment action. It is not this court’s function to resolve fact questions. This case should be remanded for trial, and I therefore respectfully dissent.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9490589. Public record. Not legal advice.