A lateral transfer can be an adverse employment action giving rise to an actionable claim under federal anti-discrimination laws even if the employee previously requested the transfer, the 6th U.S. Circuit Court of Appeals ruled.
In a 2-1 decision, the 6th Circuit reversed the lower court’s decision granting summary judgment to the Kalamazoo County Road Commission on former employee Robert Deleon’s race-, national-origin and age-discrimination claims. It explained that an employee’s transfer could constitute an adverse action— even without a demotion or pay decrease, and regardless of whether the employee requested the transfer—if the working conditions of the new position would be “objectively intolerable” to a reasonable person.
The dissenting judge disagreed, reasoning that when an employer gives a worker what he asked for, it cannot constitute an adverse employment action.
Deleon, a 53-year-old Hispanic area superintendent for the commission, applied for a vacant equipment and facilities superintendent position, which, based on the job description and his firsthand observations, he knew involved working in a garage with diesel fumes. After the commission selected another candidate, Deleon complained to his supervisors.
When the chosen individual resigned, and a second candidate declined the position, Deleon was involuntarily transferred into the job. He requested a $10,000 raise because of the job’s hazards, but the commission refused.
Deleon claimed he developed bronchitis and headaches because of his constant exposure to diesel fumes and soot. He was unhappy and believed that his transfer was a deliberate attempt to set him up to fail.
After taking an eight-month leave of absence for a stress-related mental breakdown, Deleon was terminated for exhausting all available leave before he was able to return to work.
He sued the commission, alleging violations of the Equal Protection Clause, Title VII of the 1964 Civil Rights Act and the Age Discrimination in Employment Act. All three causes of action require a plaintiff to prove that he suffered an adverse employment action.
The Michigan district court granted summary judgment to the commission, finding that Deleon could not establish he had suffered such an action.
On appeal, the 6th Circuit disagreed, finding that Deleon had established a triable issue as to whether his transfer amounted to an adverse action based on his testimony that the new position exposed him each day to toxic and hazardous diesel fumes and soot, which affected his health.
The 6th Circuit held that Deleon’s prior request for the transfer was irrelevant, since an employee’s opinion of his transfer has no bearing on whether the employment action is “adverse.” Instead, the key focus of the inquiry, the court said, is whether the conditions of the transfer would be “objectively intolerable to a reasonable person.”
The dissenting judge disagreed that an employee’s prior request for a transfer would be irrelevant, noting that the adverse-employment-action inquiry focuses on whether a “reasonable person in the plaintiff’s position” would not complain about discrimination because of the employment action. This judge questioned, “How could a reasonable employee interpret the granting of a sought-after transfer as a warning not to complain about this or that conduct of the employer?” The dissenting judge worried that the majority’s interpretation of the law, which subjects an employer to liability for giving a worker what he wanted, “will do more to breed confusion about the law than to advance the goals of a fair and respectful workplace.”
Deleon v. Kalamazoo Cnty. Rd. Comm'n, 6th Cir., No. 12-2377 (Jan. 14, 2014).
Professional Pointer: Employers should be aware that, at least in the 6th Circuit, an employee’s prior request for a position does not mean that a subsequent involuntary transfer to that position is not an adverse employment action. Any forced transfer may serve as the basis for a claim under federal anti-discrimination laws if a reasonable person could consider the working conditions of the new position objectively intolerable.
Margaret C. Alli is a shareholder and Allyson A. Miller is an associate in the Detroit office of Ogletree Deakins, an international labor and employment law firm representing management.