10-22-2025
Mary Herkert was a disabled supervisory employee working for the Social Security Administration (SSA). Herkert requested telework as an accommodation for her disability, however, the SSA denied her request. Herkert stated that she planned to file an EEO complaint, and shortly thereafter, the SSA reassigned her to a less desirable position at the agency, where she could telework. The agency said the move was based on poor work performance. Herkert acquiesced to a new position and filed a lawsuit, alleging that her reassignment was discriminatory and retaliatory.
A district court dismissed her claim, finding that the reassignment did not qualify as the “significant” change in her employment status needed to show an adverse employment action. Herkert’s reassignment was from Branch Chief to a non-supervisory analyst position, and the move did not alter her pay grade, salary, or benefits, though Herkert contended that the reassignment was indeed a demotion due to the loss of supervisory authority, prestige, and advancement opportunities.
Then, the Fourth Circuit Court of Appeals reviewed the case. Since the time in which the lower court had made its decision on Herkert’s case, the Supreme Court had decided Muldrow v. St. Louis, where it rejected the idea that a change in employment status had to cause “significant” harm to support a discrimination claim.
Because only some element of “disadvantageous” change must occur, the Fourth Circuit held that Herkert’s reassignment could qualify as an adverse action. The appellate court noted that Herkert’s case is a “context-specific” inquiry for the jury to assess. The district court viewed Herkert’s acceptance of the new role as “voluntary” and thus, not an adverse action. Herkert claimed that her supervisors called her into a meeting and informed her of the reassignment. While her supervisors allowed her to choose between two different non-supervisory positions, it was undisputed that reassigned was impending. The appellate court determined that a reasonable jury could conclude her reassignment was not truly “voluntary.”
Employers should operate with awareness that job reassignments need not show a “significant” change in working conditions, but only “some disadvantageous change,” in order to be considered discriminatory.