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Misleading Transfer Could Be Considered Adverse Action

Lana Carlson was a tenure-track professor at the University of New England (UNE) in the Exercise and Sports Performance Department. A couple of years after she started, Paul Visich was hired as the chair of her department and her tenure committee. Shortly after his hire, Dr. Visich subjected Ms. Carlson to sexually offensive conduct such as touching her knee, thigh, and hand during conversations; staring at her chest; and making “sexually charged comments” to her in emails and in person. The University admitted that the conduct was sexual harassment.
At issue was whether Ms. Carlson’s transfer to another department was retaliation. For there to be retaliation, Ms. Carlson must have suffered an adverse action. After Ms. Carlson complained, the university demanded that she meet with Dr. Visisch. She still had to report to him. He wrote a negative performance evaluation of her which she rebutted. He continued harassing her. In response to further complaints, Ms. Carlson was told she would have to switch departments if she wanted a different supervisor. Ms. Carlson agreed but on the express condition that she be able to keep her classes. Instead, she was reassigned to teach different, lower-level classes. UNE argued that it was not an adverse action because Ms. Carlson had voluntarily agreed to transfer.
The First Circuit Court of Appeals ruled in Ms. Carlson’s favor. Her transfer had led to her teaching different classes, her removal from her department’s website and she was no longer an advisor to her students. UNE had misrepresented the impact of the transfer. A jury could find that she would not have accepted the transfer but for the assurances she received, and that the transfer was in retaliation for her report of sexual harassment. Furthermore, UNE had not articulated a legitimate, nondiscriminatory reason for the transfer.