Transfer Without Pay Loss Does Not Impact Property Right

Dan Flynn is a deputy sheriff for the Oakland County, Michigan Sheriff’s Office. On February 28, 2004, a birthday party was held in honor of a fellow deputy sheriff. The party was attended by employees from the Department as well as neighboring public safety agencies. Alcohol was served. Neither Flynn nor his wife attended the party. The birthday deputy’s wife hired a stripper to perform at the birthday party. During the course of the evening, the stripper danced nude for the guests, performed a lap dance for the birthday deputy, and performed what the parties have called a “sex toy show” involving a “penis replica.”

Flynn became aware of the details of the party the following month. Flynn complained to his station commander that possible prostitution and liquor control violations had occurred at the party. When Flynn did not believe his commander was taking him seriously, Flynn’s wife sent an “anonymous” e-mail to the Sheriff complaining about the party.

Flynn later filed a federal court lawsuit, contending he was subjected to constant retaliation and mistreatment by his coworkers for sending the e-mail to the Sheriff. Among the retaliation, Flynn complained, was a transfer and the denial of promotional opportunities and overtime.

A federal court dismissed Flynn’s complaint. The Court found that Flynn’s transfer did not constitute “adverse employment action” necessary to bolster a retaliation claim under Title VII of the Civil Rights Act. The Court noted that “Flynn concedes that he suffered no reduction in salary or benefits as a result of the transfer. In addition, his hours stayed the same after the reassignment, and Flynn has not alleged any change to a less distinguished job title following the transfer. Therefore, because the transfer did not involve a reduction in salary or benefits, a less distinguished job title, or changed hours, it is not of the type typically qualifying as materially adverse employment action under the prevailing law.”

As to Flynn’s overtime claim, the Court found that “the record contains no evidence that Flynn was denied overtime opportunities. He has not offered evidence or even alleged that similarly situated employees were given overtime opportunities that he was denied or unable to perform, nor has he offered any details regarding any particular opportunity on which he missed out.”

Flynn v. Oakland County, 2009 WL 2046133 (E. D. Mich. 2009).

This article appears in the October 2009 issue