USCA4 Appeal: 24-1420 Doc: 37 Filed: 08/14/2025 Pg: 1 of 20
PUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 24-1420
MARY FRANCES HERKERT,
Plaintiff – Appellant,
v.
FRANK BISIGNANO, Commissioner, Social Security Administration,
Defendant – Appellee.
Appeal from the United States District Court for the District of Maryland, at Baltimore. Lydia Kay Griggsby, District Judge. (1:22-cv-03139-LKG)
Argued: March 18, 2025 Decided: August 14, 2025
Before GREGORY and HARRIS, Circuit Judges, and KEENAN, Senior Circuit Judge.
Vacated and remanded by published opinion. Judge Harris wrote the opinion, in which Judge Gregory and Judge Keenan joined.
ARGUED: Kristen Jean Farr, THE LAW FIRM OF KRISTEN J. FARR, Washington, D.C., for Appellant. Matthew T. Shea, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee. ON BRIEF: Erek L. Barron, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee. USCA4 Appeal: 24-1420 Doc: 37 Filed: 08/14/2025 Pg: 2 of 20
PAMELA HARRIS, Circuit Judge:
The plaintiff in this employment discrimination case, Mary Herkert, is a Social
Security Administration employee with a disability. According to Herkert, when she
requested scheduled telework as an accommodation for her medical needs, her request was
denied, and she informed her supervisors of her intent to pursue equal employment
opportunity remedies. Shortly after that, Herkert says, she was reassigned to a less
desirable position at the agency, where she was able to telework as requested.
Herkert sued in federal district court, claiming that her reassignment was
discriminatory and retaliatory, and that it failed to reasonably accommodate her disability.
The district court granted summary judgment to the defendant, the Commissioner of the
Social Security Administration. The court reasoned, in part, that Herkert could not show
the adverse employment action required for her discrimination and retaliation claims
because her reassignment did not work a “significant” change in her employment status.
Since the district court ruling, the Supreme Court has clarified that a plaintiff like
Herkert, challenging a job transfer as discriminatory, need not show a “significant” change
in working conditions to establish an adverse employment action. Muldrow v. City of St.
Louis, 601 U.S. 346 (2024). In light of Muldrow, we cannot say, as a matter of law, that
Herkert’s reassignment was insufficiently “adverse” to support her claims. And although
the district court also relied on the purportedly “voluntary” nature of Herkert’s
reassignment to reject her claims, we think genuine factual disputes preclude summary
judgment on that issue, too. Accordingly, and for the reasons detailed below, we vacate
the judgment of the district court and remand for further proceedings.
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I.
A.
Plaintiff Mary Herkert suffers from multiple physical disabilities, including severe
renal impairment, pulmonary impairment, and spondylosis. Between December 2015 and
October 2017, she was employed as a “Branch Chief” by the Social Security
Administration’s (“SSA”) Office of Buildings Management (“OBM”), a GS-13 position
on the federal government pay scale. In this role, Herkert served in a supervisory capacity
and was responsible for the oversight of building management services for the SSA.
Pursuant to SSA policy, building managers were generally allowed to telework one day
per week. Herkert requested, and consistently received, additional telework days as an
accommodation for her medical conditions.
Beyond these basic points of agreement, the parties’ factual accounts diverge in
important respects. The story picks up in the spring of 2017. According to the
Commissioner, Herkert’s job performance began to falter at that point. Herkert tells it
differently, pointing to the “fully successful” rating she received in her April 2017
performance review and averring that she was never informed of any performance issues
during that period.
The first pivotal event occurred on July 17, 2017, when Herkert met with her
supervisor, Sandra Eddington. Herkert requested a scheduled telework arrangement to
replace the ad hoc accommodations she had been granted in the past, and offered to submit
a formal accommodation request. According to Herkert, Eddington advised that a formal
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request was not necessary and that additional telework would continue to be approved on
an as-needed basis. But, Herkert says, that is not what happened. Instead, after the July
17 meeting she began to face increased scrutiny and hostility from Eddington, and the
denial of previously approved telework without explanation.
The following month, in August 2017, Herkert met with two more senior SSA
supervisors. According to Herkert, she sought the meeting to pursue her request for
scheduled telework of two days per week to accommodate her medical issues, and to
discuss Eddington’s post-July 17 denials of telework and “harassment.” J.A. 248. One of
the supervisors, Herkert says, confirmed the denial of her request for scheduled telework
as against SSA policy. Herkert expressed her objections and her intent to “escalate” her
accommodation request through “EEO” – equal employment opportunity – channels. Id.
Herkert then filed a formal accommodation request with the SSA.
In September, Eddington discussed with Herkert concerns about Herkert’s delay in
completing a work project – the first time, according to Herkert, any of her supervisors had
raised an issue with her job performance. A few days later, Herkert sought equal
employment opportunity counseling, citing harassment, failure to approve a reasonable
accommodation, and hostile work environment. And a few days after that, an SSA Agency
Medical Officer determined that Herkert had a disabling condition under the terms of the
Rehabilitation Act and that her requested scheduled telework accommodation would be
“reasonable and effective.” J.A. 249.
Things came to a head on September 27, 2017, when Herkert was called into a
meeting with Eddington and the two more senior supervisors who had been present at her
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August meeting. According to Herkert, she was told that because of performance issues,
she was being reassigned to a management analyst position within OBM. In that new
position, Herkert says, she would no longer have supervisory responsibilities; instead, she
would fill a position she was then supervising. In Herkert’s view, this reassignment was a
“demotion,” mostly because it stripped her of her supervisory authority and duties but also
because it was less prestigious, less interesting, and provided less room for advancement.
J.A. 13. In the Commissioner’s view, however, the reassignment was not a demotion but
instead a “lateral move” that would keep Herkert at the same GS-13 pay grade with the
same salary and benefits. J.A. 327.
The following Monday, on October 2, 2017, Herkert met with Jim Julian, a Deputy
Associate Commissioner at the SSA, to discuss her reassignment. As a substitute for her
reassignment to the OBM management analyst position, Herkert says, Julian offered her a
different GS-13 management analyst position: still without supervisory authority, but in a
different SSA office that would “at least remove [her] from the hostile, harassing and
retaliatory work environment” she was then experiencing at OBM. J.A. 249. But
according to Herkert, it was one reassignment or the other; it “was made clear” that she
could not keep her supervisory job as a Branch Chief. Id. “[R]eluctantly,” Herkert says,
she accepted the management analyst position proposed by Julian as the “least worst”
alternative. Id. at 249–50. As the Commissioner emphasizes, Herkert also expressed her
appreciation to Julian, writing that she was “very excited having the opportunity” he had
offered and “most grateful to [him] for making it happen.” J.A. 196.
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Herkert was officially reassigned effective October 15, 2017. There is no dispute
that shortly after Herkert started in her new role, Julian sent her a letter approving her
request for “telework up to 2 days [per] week” (and an additional episodic day as
necessary) as a “reasonable accommodation” made possible by her reassignment to the
management analyst position. J.A. 240.
B.
After administratively exhausting her claims, 1 Herkert filed a complaint in the
United States District Court for the District of Maryland against the then-Commissioner of
the SSA. 2 As relevant on appeal, Herkert claims that the SSA discriminated against her
because of her disability, retaliated against her for pursuing equal employment opportunity
remedies, and failed to provide a reasonable accommodation by reassigning her from her
supervisory building manager role to a non-supervisory management analyst position, all
in violation of the Rehabilitation Act of 1973, 29 U.S.C. § 791 et seq. The Commissioner
moved to dismiss the complaint or, in the alternative, for summary judgment.
The district court granted summary judgment to the Commissioner. See Herkert v.
Kijakazi, No. 1:22-cv-03139-LKG, 2024 WL 1050831, at *1 (D. Md. Mar. 11, 2024). The
1 Herkert filed a formal complaint with the Equal Employment Opportunity Commission on December 17, 2017. The administrative law judge issued a Final Agency Decision finding no discrimination or retaliation, and the Office of Federal Operations affirmed. 2 The defendant has since been automatically substituted several times as different public officers have served as Commissioner or Acting Commissioner of the SSA. See Fed. R. Civ. P. 25(d); Fed. R. App. P. 43(c)(2).
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court began with Herkert’s discrimination and retaliation claims, which it analyzed in
tandem. To succeed on each of those claims, the district court explained, Herkert would
have to show that she suffered some “adverse” employment action. Id. at *5. And for two
independent reasons, the court concluded, Herkert could not make that showing.
First, the court held, Herkert’s reassignment did not constitute a sufficiently
“significant” change in her employment status to qualify as an “adverse employment
action” for purposes of a discrimination claim. Id. at *7–8. This “significant” standard,
the court reasoned, had been established by Fourth Circuit precedent, and when the
employment action in question was a reassignment, it required “some significant
detrimental effect” on the employee’s status, like a “decrease in salary, benefits, or rank.”
Id. at *6 (first quoting James v. Booz-Allen & Hamilton, Inc., 368 F.3d 371, 376 (4th Cir.
2004); then quoting Edmonson v. Potter, 118 F. App’x 726, 729 (4th Cir. 2004)). Here, it
was undisputed that Herkert’s reassignment to a non-supervisory position “did not involve
any change to [her] pay grade or salary” and offered her the same benefits. See id. at *8.
And although Herkert alleged that the new position offered less “prestige, interest, and
advancement,” even taken as true, those facts were insufficient as a matter of law to show
that her reassignment was “substantially detrimental.” Id.
With respect to Herkert’s retaliation claim, the district court noted that the standard
for an adverse action is different. In that context, the court explained, Herkert was required
to show a “materially adverse” action, or one that “well might have dissuaded a reasonable
worker from making or supporting a charge of discrimination” or otherwise engaging in
protected conduct. Id. at *7 (quoting Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S.
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53, 68 (2006)). The court did not, however, separately consider whether Herkert’s
reassignment met this “materially adverse” standard. See id. at *7–8.
Instead, the court moved on to its second reason for holding that Herkert could not
show the requisite adverse employment action: If an employee “voluntarily requests a
transfer, and the employer agrees to it, there is no actionable adverse action.” Id. at *7
(quoting Laird v. Fairfax Cnty., 978 F.3d 887, 894 (4th Cir. 2020)). In the court’s view, it
was “undisputed that [Herkert] voluntarily accepted a reassignment to the position of
management analyst” proposed during her meeting with Julian, as reflected in her email
expressing her gratitude to Julian “for making it happen.” Id. at *8. It followed, the court
held, that Herkert was precluded from showing the requisite adverse employment action
for both her discrimination and retaliation claims. Id.
Having found as a matter of law that Herkert’s reassignment was neither
significantly detrimental nor involuntary, the court had little trouble concluding that the
reassignment also constituted a “reasonable accommodation.” Id. at *9. To succeed on a
reasonable accommodation claim, the court explained, Herkert was required to establish,
inter alia, that her employer had failed to make a reasonable accommodation for her
disability. Id. But here, the court explained, the undisputed facts showed that in her new
and voluntarily accepted position, Herkert was granted her requested telework
accommodation and permitted to telework up to two days per week. Because she had been
provided with the additional telework days she sought by way of this “effective
accommodation[],” the court held, Herkert could not succeed on a reasonable
accommodation claim. Id.
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Herkert timely appealed.
II.
We review the district court’s ruling on summary judgment de novo, applying the
same legal standards as the district court and viewing the evidence in the light most
favorable to Herkert, the nonmoving party. Carter v. Fleming, 879 F.3d 132, 139 (4th Cir.
2018). Summary judgment is appropriate only if there is no genuine dispute of material
fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a);
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). If, after reviewing the record as a
whole, we find that a reasonable jury could return a verdict for Herkert, “then a genuine
factual dispute exists and summary judgment is improper.” Evans v. Techs. Applications
& Serv. Co., 80 F.3d 954, 959 (4th Cir. 1996).
The Supreme Court recently – and only after the district court’s decision – rejected
the position that a change in employment status must work a “significant” harm to support
a discrimination claim. See Muldrow, 601 U.S. at 354–56. Under the correct standard,
requiring only “some ‘disadvantageous’ change in an employment term or condition,” id.
at 354, we cannot say, as a matter of law, that Herkert’s reassignment does not qualify. We
also conclude that there are genuine factual disputes as to the “voluntary” nature of
Herkert’s reassignment. We therefore vacate the district court’s grant of summary
judgment to the Commissioner on Herkert’s discrimination and retaliation claims. And
because the district court’s reasonable accommodation analysis presupposed that Herkert’s
reassignment was both voluntary and of no cognizable harm to Herkert, we vacate the grant
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of summary judgment on that claim, as well, and remand so that the district court may
revisit the issue.
We begin with Herkert’s discrimination and retaliation claims which, like the
district court, we address together. Herkert brings her claims pursuant to the Rehabilitation
Act, which prohibits federal agencies from discriminating against their employees on the
basis of disability. See 29 U.S.C. § 794(a). In determining whether the Rehabilitation Act
has been violated, courts apply the same standards as under the Americans with Disabilities
Act. See id. § 794(d); see also Doe v. U. of Maryland Med. System Corp., 50 F.3d 1261,
1265 n.9 (4th Cir. 1995) (explaining that where the Rehabilitation Act and ADA employ
language that “is substantially the same, we apply the same analysis to both”). 3 And
because the ADA, in turn, “echoes and expressly refers to Title VII, and because the two
statutes have the same purpose – the prohibition of illegal discrimination in employment –
courts have routinely used Title VII precedent in ADA cases.” Fox v. Gen. Motors Corp.,
247 F.3d 169, 176 (4th Cir. 2001).
Under this precedent, as the district court explained and the parties agree, Herkert
must show, as part of her discrimination and retaliation claims, that she suffered an adverse
employment action. See Herkert, 2024 WL 1050831, at *7 (first citing Hannah P. v. Coats,
916 F.3d 327, 342 (4th Cir. 2019) (discrimination); then citing Foster v. Univ. of Maryland-
3 The Americans with Disabilities Act’s employment discrimination provisions also forbid retaliation against employees who have engaged in protected activity. See 42 U.S.C. § 12203(a); see 29 U.S.C. § 794(d) (incorporating ADA’s anti-retaliation provision).
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Eastern Shore, 787 F.3d 243, 250 (4th Cir. 2015) (retaliation)). Whether she can make that
showing is the question on appeal.
1.
In evaluating whether Herkert’s reassignment was sufficiently “adverse” for
discrimination purposes, the district court applied what was then the governing standard in
our circuit and held that only a reassignment with a “significant detrimental effect” could
qualify. Id. at *6; see James, 368 F.3d at 376. And under that standard, the court
concluded, Herkert’s reassignment to a management analyst position – with the same pay
grade and salary as Herkert’s prior Branch Chief position, but with no supervisory authority
and an alleged loss of “prestige, interest, and advancement” – was not “significant” enough
to constitute an adverse employment action. Herkert, 2024 WL 1050831, at *8.
A month later, the Supreme Court abrogated our decision in James, see Muldrow,
601 U.S. at 353 & n.1 (listing James as among the decisions incorrectly requiring a
“heightened threshold of harm” to make out a discrimination claim), and held that a
plaintiff alleging Title VII discrimination need not show that harm incurred from a
reassignment was “significant.” A plaintiff must, of course, “show some harm from a
forced transfer to prevail,” but “she need not show that the injury satisfies a significance
test.” Id. at 350 (emphasis added). Instead, it is enough that the plaintiff has suffered
“some disadvantageous change in an employment term or condition.” Id. at 354 (internal
quotation marks and citation omitted).
The Commissioner does not dispute that Muldrow, a Title VII case, governs here,
and we agree that Muldrow is applicable to Herkert’s Rehabilitation Act discrimination
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claim. As noted above, courts routinely rely on Title VII precedent in ADA cases, Fox,
247 F.3d at 176, and the Rehabilitation Act expressly incorporates ADA standards, see 29
U.S.C. § 794(d). And though there are some circumstances in which differences in
statutory text may “dictate different interpretations,” see Baird ex rel. Baird v. Rose, 192
F.3d 462, 469 (4th Cir. 1999), there are no such differences here: The relevant text in Title
VII prohibits “discriminat[ing] against” an individual “with respect to his compensation,
terms, conditions, or privileges of employment,” see Muldrow, 601 U.S. at 354; 42 U.S.C.
§ 2000e-2(a)(1), and the Rehabilitation Act, by way of the ADA, prohibits
“discriminat[ing] against” a qualified individual “in regard to . . . employee compensation
. . . and other terms, conditions, and privileges of employment,” 42 U.S.C. § 12112.
What the parties do dispute is whether Herkert can satisfy the Muldrow standard by
showing “some disadvantageous change” – which need not be “significant,” “serious,” or
“substantial,” see Muldrow, 601 U.S. at 355 – in the terms and conditions of her
employment. The government argues that she cannot, emphasizing that Herkert’s
reassignment from Branch Chief to management analyst entailed no diminution in pay
grade, salary, or benefits. Herkert, on the other hand, argues that her reassignment was
tantamount to a demotion and distinctly “disadvantageous,” primarily because it took away
her supervisory authority and duties. 4
4 That Herkert was transferred from a supervisory position to a non-supervisory position is undisputed. Herkert also alleges that her new position offered less “prestige, interest, and advancement” – an allegation that the Commissioner does dispute, pointing especially to Herkert’s promotion from the management analyst position in 2020, to a (Continued) 12 USCA4 Appeal: 24-1420 Doc: 37 Filed: 08/14/2025 Pg: 13 of 20
Muldrow offers some support for Herkert’s position, recognizing that a loss of
supervisory authority may be highly relevant to the “simple injury” standard it is
announcing. See Muldrow, 601 U.S. at 355–56 & n.2 (noting, as one example of a claim
that had “failed under a significance standard [but] should now succeed,” the case of a
school principal who was “forced into a non-school-based administrative role supervising
fewer employees”). But we do not read Muldrow as holding that a loss of supervisory
responsibility will always be “disadvantageous,” and we can imagine circumstances in
which, say, the removal of burdensome supervisory duties could be a welcome
development that improves the terms and conditions of employment. Accordingly, we
decline to hold, as Herkert urges, that any loss of supervisory authority suffices as a matter
of law to show an actionable “disadvantageous change” in employment status. Instead, we
think this is a context-specific inquiry, and that it is for a jury to assess Herkert’s allegation
that in her case, reassignment to a non-supervisory role was an adverse and
“disadvantageous” change that left her “worse off,” even if not “significantly so.” Id. at
359.
2.
The effect of Muldrow on Herkert’s retaliation claim requires a bit more
explanation. As the district court recognized, courts have employed a distinct standard for
identifying cognizable adverse actions in the retaliation context. Herkert, 2024 WL
higher salary, supervisory position. We leave an assessment of these allegations and their relevance under the Muldrow standard to the district court on remand.
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1050831, at *7. Title VII’s anti-discrimination provision – like the ADA’s – “requires that
the injury asserted concern the terms and conditions of [] employment.” Muldrow, 601
U.S. at 358; see 42 U.S.C. § 2000e-2(a)(1) (Title VII); 42 U.S.C. § 12112 (ADA). The
anti-retaliation provision, by contrast, is not tied to the terms and conditions of
employment, and so may “include a wider variety of conduct within its scope.” Laurent-
Workman v. Wormuth, 54 F.4th 201, 213 (4th Cir. 2022) (citing Burlington N., 548 U.S. at
62–63); see Laird, 978 F.3d at 893. But only “materially adverse” actions will qualify –
those “serious enough to ‘dissuade a reasonable worker from making or supporting a
charge of discrimination.’” Muldrow, 601 U.S. at 358 (quoting Burlington N., 548 U.S. at
68); see Laurent-Workman, 54 F.4th at 213 (“materially adverse” standard “separates
minor harms from those that threaten to chill” protected conduct). This standard is
sometimes referred to as a “significant harm” requirement, creating some linguistic overlap
with the heightened threshold of harm rejected by Muldrow. But because the “materially
adverse” standard was “adopted . . . for reasons peculiar to the retaliation context,”
Muldrow’s analysis of discrimination claims leaves it unchanged. Muldrow, 601 U.S. at
357.
In short, it remains the case, as the district court noted, that to prevail on her
retaliation claim, Herkert was required to show that “a reasonable employee would have
found [her] reassignment to be materially adverse,” in that it “might have dissuaded a
reasonable worker” from pursuing a discrimination complaint. Herkert, 2024 WL
1050831, at *7 (citation omitted). But although the district court recited this standard, it
seems not to have applied it to the reassignment in question. And in light of the record
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evidence, which we view in the light most favorable to Herkert at this stage of the
proceedings, we cannot say that Herkert’s reassignment from Branch Chief to management
analyst could not meet the “materially adverse” standard as a matter of law. For much the
same reason a jury could credit Herkert’s allegations that her reassignment to a non-
supervisory position was a “disadvantageous change” in her employment status, it could
find that change might “dissuade a reasonable worker” from protected activity.
3.
The district court separately concluded that Herkert could not show an adverse
action for either discrimination or retaliation purposes because her reassignment was
“voluntary.” There is “no actionable adverse action,” the court reasoned, when an
employee voluntarily accepts a transfer. Id. (quoting Laird, 978 F.3d at 894). And in the
district court’s view, it was “undisputed” that Herkert did just that, voluntarily transferring
to a non-supervisory analyst role where she could telework on a scheduled basis. Id. at *8.
We disagree. Viewing the evidence in Herkert’s favor, as we must, we think a reasonable
jury could conclude that Herkert’s reassignment from Branch Chief to a non-supervisory
position was not “voluntary” in the relevant sense.
The district court relied primarily on our decision in Laird, in which we considered
ADA discrimination and retaliation claims by a plaintiff who, like Herkert, sought telework
as a reasonable accommodation for her disability. 978 F.3d at 890. After filing a complaint
with the Equal Employment Opportunity Commission, she entered into a settlement
agreement in which her employer “agreed to provide, and Laird agreed to accept, a lateral
transfer” to a position in which there would be more telework flexibility. Id. (cleaned up).
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When Laird later sued her employer, alleging the transfer was in fact an adverse action, we
rejected that claim: “If an employee voluntarily requests a transfer, and the employer
agrees to it, there is no actionable adverse action.” Id. at 894; see id. at 895 (“[A] transfer
is not an adverse action when it is voluntarily requested and agreed upon.”)
According to Herkert, that is not what happened here. As Herkert describes it, the
employment action in question – her alleged “demotion” from Branch Chief to
management analyst – occurred when she was called into a meeting on September 27,
2017, and informed by her supervisors that she was being reassigned to a non-supervisory
analyst position. That reassignment, Herkert says, was presented as a fait accompli, in
response to purported performance issues on her part. See J.A. 249 (“I was informed that
I was removed from my position on the pretext of performance issues [and] . . . instructed
to report to [a] cubicle for a new position of lower status effective immediately.”). There
is nothing “voluntary” about this version of events.
The Commissioner, of course, emphasizes what happened next, when a few days
later, on October 2, 2017, Julian offered Herkert a substitute management analyst position
in a different SSA office. And Herkert does not dispute that when offered that substitute
she gratefully accepted it, because it would “at least remove [her] from the hostile,
harassing and retaliatory work environment” in her current office. Id. But according to
Herkert, that offer came only after she already had been “demoted” on September 27 –
stripped of her Branch Chief position and reassigned as a management analyst – and it was
at all times made clear to her that she could not keep her original job. Id. On Herkert’s
account, in other words, her transfer from Branch Chief to management analyst was
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imposed on her on September 27 and, in one office or another, was involuntary on
September 27 and still involuntary on October 2.
The district court’s reasoning on this point is not altogether clear. To the extent the
district court believed that Herkert’s account of events described a “voluntary”
reassignment within the meaning of Laird, that was mistaken as a matter of law. An
employer cannot transform a demotion into a voluntary transfer by giving an employee a
choice between two demotions. To the extent the district court believed the record would
not allow a jury to credit Herkert’s account, that, too, was mistaken. We see nothing in the
record that would foreclose Herkert’s allegation that she accepted one of two analyst
positions only after SSA management made clear that she would be reassigned to that
position no matter what. Indeed, in many important respects, Herkert’s account is not
disputed by the Commissioner: The Commissioner agrees, for instance, that a “decision to
reassign” Herkert to a non-supervisory position was made prior to the September 27
meeting at which Herkert was informed of her transfer, and days before she was offered a
substitute analyst position in another office. Whether Herkert can ultimately prove her
version of events is, of course, a question for a jury, about which we express no view.
In sum, we conclude that the district court erred when it held that Herkert could not
show, as a matter of law, the requisite adverse action to support her discrimination and
retaliation claims – either because her reassignment was not sufficiently disadvantageous
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or material, or because it was voluntary. Accordingly, we vacate the grant of summary
judgment to the Commissioner on these claims and remand for further proceedings. 5
That leaves Herkert’s reasonable accommodation claim. To establish a prima facie
case on a failure-to-accommodate claim under the Rehabilitation Act, as under the ADA,
a plaintiff must show that (1) she is an individual with a qualifying disability, (2) that her
employer had notice of that disability, (3) that she could perform the essential functions of
her job with a reasonable accommodation, and (4) that her employer refused to make a
reasonable accommodation. Herkert, 2024 WL 1050831, at *9; see Reyazuddin v.
Montgomery Cnty., 789 F.3d 407, 413–14 (4th Cir. 2015). The district court held that
Herkert could not make the fourth of these showings, and granted summary judgment to
the Commissioner on that basis. Herkert, 2024 WL 1050831, at *9.
For the district court, this was a straightforward matter: It was undisputed that in
her new management analyst position, Herkert had been allowed scheduled telework of up
to two days a week. Id. And the district court already had established, it believed, that
Herkert had voluntarily agreed to reassignment to this new position – naturally enough, in
5 The Commissioner argues that even if Herkert can show an adverse action, it is entitled to summary judgment on her discrimination and retaliation claims on alternative grounds. According to the Commissioner, he can establish as a matter of law that the SSA had legitimate, non-discriminatory and non-retaliatory reasons for her reassignment, and Herkert cannot show that its reasons are pretexts for discrimination or retaliation. See Hannah P., 916 F.3d at 347 (explaining that courts analyze Rehabilitation Act discrimination and retaliation claims under the McDonnell Douglas burden-shifting framework). We express no view on these arguments and leave them to the district court on remand.
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the court’s view, because the reassignment from Branch Chief to management analyst
brought no appreciable downsides. Id. at *7–8. For the same reasons Herkert could not
show her reassignment was adverse, in other words, the district court thought it clear that
her reassignment was a “reasonable” accommodation of her disability. Likewise, the SSA
now argues that Herkert’s reasonable accommodation claim fails for the same reason as
her discrimination and retaliation claims: because her reassignment to a management
analyst position was not adverse.
But as we have explained, the district court erred in concluding, as a matter of law,
that Herkert suffered no adverse employment action and that her reassignment was
voluntary. And that error affected its analysis of Herkert’s reasonable accommodation
claim, as well. Because it viewed Herkert’s reassignment as voluntary, for instance, the
district court had no occasion to consider that “unilateral[]” reassignment of an employee
to a “position they do not want” may not qualify as a reasonable accommodation. Wirtes
v. City of Newport News, 996 F.3d 234, 241 (4th Cir. 2021) (cleaned up) (holding that
district court erred in granting summary judgment on reasonable accommodation claim
“without considering the strongly disfavored status” of involuntary transfers when disabled
employee can perform essential functions of current position with or without reasonable
accommodation). And because it viewed Herkert’s new non-supervisory job position as
equal in all relevant respects to her old position, it had no occasion to consider whether it
provided Herkert a “meaningful equal employment opportunity.” Reyazuddin, 789 F.3d at
416.
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Because the district court’s analysis of Herkert’s discrimination and retaliation
claims “overlaps considerably with [Herkert’s] failure-to-accommodate claim,” “our
earlier holding . . . applies here as well.” Id. at 418–19. Having vacated the district court’s
judgment that Herkert cannot show an involuntary and adverse employment action, we
must also vacate its judgment on Herkert’s reasonable accommodation claim.
III.
For the reasons given above, we vacate the judgment of the district court and remand
for further proceedings consistent with this opinion.
VACATED AND REMANDED