Kyle KEETON, Plaintiff-Appellee, v. FLYING J, INC., Defendant-Appellant, 429 F.3d 259

GUY, J., delivered the opinion of the court, in which BATCHELDER, J., joined. GILMAN, J. (pp. 266-275), delivered a separate dissenting opinion. OPINION RALPH B. GUY, JR., Circuit'Judge. In this sexual harassment case, defendant Flying J, Inc. appeals from a jury verdict finding it liable for supervisory sexual harassment resulting in a tangible employment action. Flying J argues that there was no tangible employment action when it fired but then re-hired plaintiff Kyle Keeton the same day and when it laterally transferred Keeton to a different location.

For the reasons explained below, we conclude that the termination was not a tangible employment action but that a reasonable jury could have decided that the transfer was a tangible employment action. Accordingly, we AFFIRM. I. Flying J operates travel plazas that cater to interstate travelers. Each plaza has a restaurant. Kyle Keeton applied to be an assistant restaurant manáger at a Flying J plaza. On his employment application, he stated that he was willing to relocate to other Flying J travel plazas. Keeton agreed because he believed that relocation would increase his chances for advancement.

Keeton lived in Georgia when Flying J hired him, but he agreed to relocate to Tennessee for training. After he completed his training in June of 2001, Flying J assigned Keeton to work as an associate manager at the Walton, Kentucky plaza. Flying J orally committed to keep Keeton at the Walton store for five years. Judy Harrell was the General Manager and his immediate supervisor. In September, Harrell began making several sexual advances toward Keeton, which he rejected.

Even though Keeton was not scheduled to work on December 4, 2001, Harrell called him at home and asked him to come to the restaurant so that she could speak to him in person. When Keeton arrived at the restaurant, Harrell told him that he was fired, explaining, “you’re not supporting me.” Prior to this meeting, Harrell had never disciplined Keeton formally or informally, had not criticized him at all during management meetings, and Keeton had no warning that his job was in jeopardy. After the meeting, an assistant manager escorted Keeton from the building. Keeton returned home and phoned Jamal Abdalla.

Abdalla had been the manager of the district encompassing Walton when Keeton was hired, but in December of 2001 Abdalla was the district manager of another district that included Cannonsburg, Kentucky, a town 120 miles away from Walton. Keeton told Abdalla about the termination and that he thought it resulted from sexual harassment. Abdalla called Keeton back about one-and-a-half hours later and told him that he could maintain his position as associate manager if he transferred to Cannonsburg.

Later that same day, his termination was formally changed to a two-week suspension, then a one-week suspension, then “to however fast [Keeton] could get over to Cannons-burg.” Abdalla told him that he was being “reinstated.” It took Keeton one week to move to Cannonsburg, and he was paid for that week. Keeton maintained the same title, responsibilities, salary, and benefits in Cannonsburg that he had in Walton. Keeton’s wife could not move with him to Cannonsburg because of a debilitating back problem that resulted in serious surgery.

While he was working in Cannons-burg, Keeton maintained two residences— one for himself and one for his wife. Kee-ton worked at the Cannonsburg Flying J restaurant until mid-January, when he left for a position with another restaurant chain. Keeton filed this lawsuit against Flying J for sexual harassment, retaliation, and constructive discharge under Title VII and Kentucky Revised Statute

Chapter 344. Keeton alleges that he suffered from sexual harassment resulting in a tangible employment action, or alternatively that he suffered from sexual harassment resulting in a hostile work environment. The district court rejected Flying J’s motion for

summary judgment. The parties then consented to the jurisdiction of a magistrate judge for the jury trial. Flying J moved for judgment as a matter of law after Keeton presented his case to the jury and again after it presented its defense, but the magistrate judge denied the motions. The jury found Flying J liable only for sexual harassment resulting in a tangible employment action. Following the format of the verdict form, the jury did not answer the interrogatory regarding sexual harassment with no tangible employment action.

The jury answered “no” to the interrogatories asking if Flying J was liable for retaliation or if Keeton was constructively discharged. The jury awarded Keeton $15,000 in compensatory damages for emotional suffering, but with no back pay. Flying J renewed its motion for judgment as a matter of law on the grounds that Keeton had failed to produce evidence that he suffered a tangible employment action, but the court again denied the motion. Pursuant to 42 U.S.C. § 2000e-5, the trial court awarded Keeton attorney fees and costs of $36,573.86 as the prevailing party. II.

We review de novo a district court’s denial of judgment as a matter of law. White v. Burlington N. & Santa Fe Ry. Co., 364 F.3d 789, 794 (6th Cir.2004) (en banc), petition for cert. filed, (U.S. Aug. 24, 2005) (No. 05-259). “In determining whether a motion should have been granted, we must review the entire record, we ‘must draw all reasonable inferences in favor of the nonmoving party, and [we] may not make credibility determinations or weigh the evidence.’ ” McCombs v. Meijer, Inc., 395 F.3d 346, 352 (6th Cir.2005) (quoting Reeves v.

Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105, (2000)). Judgment as a matter of law is appropriate where “a party has been fully heard on an issue and there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue.” fed. R. Crv. P. 50(a)(1). Sexual harassment claims under the Kentucky Civil Rights Act and Title VII are analyzed in the same manner. Clark v. United Parcel Serv., Inc., 400 F.3d 341, 347 (6th Cir.2005). An employer’s liability for supervisory sexual harassment depends on the consequences of the supervisor’s actions.

If proven sexual harassment by the supervisor did not result in a tangible employment action, then the employer may not be liable if it engaged in preventative or corrective measures and the plaintiff unreasonably failed to utilize the measures the employer provided. Faragher v. City of Boca Raton, 524 U.S. 775, 807, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998); Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 765, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998). If the sexual harassment did result in a tangible employment action, the employer will be strictly liable for the supervisor’s sexual harassment.

Ellerth, 524 U.S. at 762-63, 118 S.Ct. 2257; Clark, 400 F.3d at 349 n. 1. “When a plaintiff proves that a tangible employment action resulted from a refusal to submit to a supervisor’s sexual demands, he or she establishes that the employment decision itself constitutes a change in the terms and conditions of employment that is actionable under Title VII.” Ellerth, 524 U.S. at 753-54, 118 S.Ct. 2257.

The Ellerth court defined a tangible employment action as “a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” Id. at 761, 118 S.Ct. 2257. Accordingly, we have stated that an employment action must be materially adverse for an employer to be strictly liable for sexual harassment. Kocsis v. Multi-Care Mgmt. Inc., 97 F.3d 876, 886 (6th Cir.1996). The jury found that Harrell sexually harassed Keeton and that the harassment resulted in a tangible employment action.

Flying J argues on appeal that the termination was not a tangible employment action because it was too temporary, and that the transfer was not a tangible employment action because it was lateral. A. The Termination We have decided that when an employer imposes an employment action that would be an adverse employment action but then quickly reverses the action, the employee has not suffered an adverse employment action. Birch v. Cuyahoga County Probate Court, 392 F.3d 151 (6th Cir.2004); Bowman v. Shawnee State Univ., 220 F.3d 456 (6th Cir.2000).

In Birch, a probate court magistrate sued for race and sex discrimination under Title VII and the Ohio civil rights statute. At a meeting with the presiding judge after she complained about unequal pay, the presiding judge told her that he would not like her to be a magistrate any longer. Birch, 392 F.3d. at 156. When the plaintiff asked if she was being fired, the judge told her that she was not. Id. The plaintiff argued that his comment was a termination and that it was an adverse employment, action under Title VII. Id. at 169.

We concluded that the presiding judge’s remarks did not amount to an adverse action because, even if she was terminated for a moment, there was no real change in her employment status. Id. Likewise, in Bowman we determined that a temporary removal of responsibilities was not an adverse action. There, the plaintiff had been an instructor and the Coordinator of Sports Studies at a university, and he alleged that his supervisor, a woman, sexually harassed him, ultimately resulting in her removing him as Coordinator. 220 F.3d at 459-60.

Ten days later, he was restored to his previous position and the termination letter was removed from his file. Id. We held that “[e]ven if we assume that the loss of the Coordinator position constitutes a significant change in employment status, there is no tangible employment action in this case because the very temporary nature of the employment action in question makes it a non-materially adverse employment action.” Id. at 462.

Other courts have also held that when an otherwise adverse employment action is rescinded before the employee suffers a tangible harm, the employee has not suffered an adverse employment action. See Pennington v. City of Huntsville, 261 F.3d 1262, 1267 (11th Cir.2001) (and cases collected therein). Therefore, the only reasonable conclusion the jury could have reached in this case is that Keeton’s termination lasting only hours was not a tangible employment action. B. The Transfer Flying J maintains that a transfer without a change in status, benefits, or salary is not a tangible employment action.

We have held that “reassignments without salary or work hour changes do not ordinarily constitute adverse employment decisions in employment discrimination claims.” Kocsis, 97 F.3d at 885 (emphasis added). In Kocsis, a nursing supervisor was reassigned as a unit nurse. There was no evidence that the new position held less prestige, earned a lower salary, demanded worse hours, or entitled her to any difference in employment related benefits of any kind. Id. at 886-87. Therefore, we concluded that the reassignment was not an adverse action. Id.

In White, a female railroad employee sued her employer for sex discrimination. After she had complained about sexual harassment committed by her immediate supervisor, she was removed from her forklift position and reassigned to a track laborer position. 364 F.3d at 792. Her pay and benefits were the same, but the job was dirtier, more labor intensive, more difficult, required fewer qualifications, and was considered a worse job by the other employees. Id. at 793.

We concluded that even though there was no loss in salary or benefits, the factors listed above were unique to the plaintiffs situation and rendered the transfer a demotion. Id. at 803. In this case, Keeton’s responsibilities in Cannonsburg were not different from his responsibilities in Walton. The only difference between the two positions was location, and Keeton did not present any evidence that Cannonsburg was objectively a worse location than Walton. Cannonsburg was, however, a substantial distance from Walton.

Defendant correctly points out that Koscis and White focus on the differences in job duties and not other impacts on the employee. We have not precluded consideration of such factors as commuting distance or relocation, however. In Policastro v. Northwest Airlines, Inc., 297 F.3d 535 (6th Cir.2002), we explicitly stated that increased distance to a work site can amount to a constructive discharge. There, the plaintiff was a sales agent living in the Cincinnati area. Id. at 537.

Her sales territory included Louisville and Lexington, Kentucky, which were one hundred miles and eighty miles, respectively, from her home. Id. The Louisville/Lexington region comprised about forty percent of her sales, and she was required to be physically in the Louisville/Lexington region four to six days per month. Id. She was assigned to work the Louisville/Lexington areas exclusively following a corporate restructuring, and she was expected to be physically present there four days per week. Id.

She was not required to relocate and chose not to, commuting instead and spending three nights per week in Kentucky. Id. She did not experience any change in salary, benefits, diminution in responsibilities, or a modification of her title, and the reassignment was expected to advance her career. Id. at 539. She was unhappy with the change and resigned about ten months later. Id. at 538. She sued her employer for sex and age discrimination, claiming that the reassignment amounted to a constructive discharge. Id.

We held that the reassignment was not objectively intolerable and therefore was not a constructive discharge because “[t]he only aspect of her job that changed was that she was required to spend her time solely in Kentucky rather than splitting her time with the Cincinnati market. The distance Policastro had to travel did not increase, although the number of times per month that she had to travel that distance did.” Id. at 539.

Flying J places importance on our statement that “[a]n employee’s subjective impressions as to the desirability of one position over another are not relevant” to the decision of whether an employee was constructively discharged. Id. Flying J maintains that a dislike of a long commute or relocation is an example of the subjective desirability of a position to the employee and we therefore should disregard Keeton’s dislike of his new location.

The very next sentence after the one quoted directly above, however, is: “We note that increased distance from home to a new position is a factor in determining whether a constructive discharge has occurred.” Id. If dislike of increased commute or relocation for a new position merely represents the subjective taste of the employee, then we would not have expressly stated that increased distance is a relevant consideration. We have also considered commute distance in other decisions. In Akers v.

Alvey, 338 F.3d 491 (6th Cir.2003), a state employee who complained about sexual harassment was transferred to a different county’s office. We decided that the transfer was not an adverse employment action because there was no significant change in her pay or duties, and “the transfer actually reduced Aker’s round[-]trip commute from her home by 60 miles per day.” Id. at 498. We have also affirmed an Eastern District of Kentucky decision that held in the constructive discharge context, a lateral transfer with an added twenty minutes of commute time did not constitute a constructive discharge. Darnell v.

Campbell County Fiscal Court, 731 F.Supp. 1309 (E.D.Ky. 1990), aff'd, 924 F.2d 1057 (6th Cir.1991). The district court admitted that “transfer over a great distance can amount to a constructive discharge.” Id. at 1313, citing Christensen v. Equitable Life Assurance Soc’y, 767 F.2d 340, 343 (7th Cir.1985). Although much of our case law focuses on transfers in the context of the plaintiffs effort to demonstrate a constructive discharge, we have not precluded the possibility that a transfer not rising to the level of a constructive discharge might nonetheless constitute a tangible employment action. See Hollins v.

Atl. Co., 188 F.3d 652, 662 (6th Cir.1999) (noting that “other indices that might be unique to a particular situation” can turn what would ordinarily not be an adverse employment action into one). While this jury found that Keeton was not constructively discharged, it could reasonably have found that Keeton’s transfer, which increased his commute to the extent that he needed to consider relocation, was an adverse employment action.

Flying J also argues that the transfer could not have been an adverse employment action for two additional reasons: Keeton had agreed to relocate on his employment application, and Keeton did not seek damages incurred by the transfer. Keeton’s employment application does not negate the transfer’s impact on Keeton because when he agreed to be transferred, he did so with the understanding that a transfer would be for advancement within the company and not as a result of unlawful sexual harassment. Moreover, defendant’s position that Keeton did not seek damages because of the transfer is disingenuous.

It is based on Keeton’s trial testimony during cross-examination in response to the following question: “And you’re not claiming any damages, money damages, in this case because you were moved from Walton within five years now, are you?” Keeton answered “no.” The question inquired as to whether Keeton was pursuing a claim for defendant’s failure to honor its oral commitment to keep Keeton in Walton for five years, not whether Keeton incurred any damages because of the transfer. Flying J’s only ground for reversal was that the jury improperly found a tangible employment action.

Having determined that the jury could have reasonably concluded that Kee-ton suffered an adverse employment action, we AFFIRM. . The terms “tangible employment action” and “adverse employment action'-' are interchangeable. Bowman v. Shawnee State Univ., 220 F.3d 456, 461 n. 5 (6th Cir.2000). . Because of the nature of the argument offered in the dissent, it is important to emphasize that we are not holding that a lengthy or even burdensome commute is, per se, an adverse employment action. We merely hold that here, it was an appropriate factor for the jury to consider given the particular facts of this case.