Transfer to Applied-for Position was Adverse Employment Action under Title VII and ADEA: Sixth Circuit

Practical Law Legal Update 9-554-7825 (Approx. 5 pages)

Transfer to Applied-for Position was Adverse Employment Action under Title VII and ADEA: Sixth Circuit

by Practical Law Labor & Employment

Background

Kalamazoo County Road Commission (Commission) employed Robert Deleon, a 53 year-old Mexican-American, for 28 years. Since 1995, he was employed as Area Superintendent and received generally positive performance reviews. In 2008, Deleon applied for the position of Equipment and Facilities Superintendent. Deleon asserted that, had he been successful in applying for the position, he would have asked for a $10,000 salary increase because he would be exposed to loud noises and diesel fumes in the garage. Deleon learned after his interview that his application was unsuccessful.

Nine months later, Deleon was involuntarily transferred to the very same position for which two other applicants were selected before him (Equipment and Facilities Superintendent). Deleon voiced objections to the hazards of the position and requested a raise to compensate him for the diesel fumes and poor ventilation. He did not receive the requested raise. After a turbulent meeting with his supervisor, Deleon was hospitalized (due, he claimed, to a work-induced mental breakdown) and took eight months FMLA leave. When Deleon returned to work, he was terminated by the Commission who said that he had exhausted all available leave.

Deleon brought discrimination claims in district court and the Commission moved for summary judgment. The district court granted the Commission's claim for summary judgment on the basis that Deleon did not suffer an "adverse employment action." Deleon appealed to the Sixth Circuit.

Outcome

In a 2-1 opinion (Sutton, J. dissented), the Sixth Circuit reversed the district court's grant of summary judgment and remanded, holding that:

Deleon had met the threshold at the summary judgment stage to show that the working conditions of the new position were sufficiently objectively intolerable to constitute an adverse employment action, even though there was no reduction in salary or benefits.
Deleon's transfer request to the position does not preclude a finding that he suffered a materially adverse employment action. Under certain circumstances, a voluntary or requested transfer can still give rise to an adverse employment action.

The Sixth Circuit majority noted that:

All three causes of action alleged (the Equal Protection Clause under Section 1983, race and national origin discrimination under Title VII and age discrimination under the ADEA) require that the employee suffer an adverse employment action.
A job reassignment without changes in hours or salary can be an adverse employment action if it constitutes a demotion evidenced by, for example:
- a lesser title;
- a material loss in benefits;
- or significantly diminished responsibility.
(White v. Burlington N. & Santa Fe Ry. Co., 364 F.3d 789 (6th Cir. 2004).)
Whether a job reassignment is materially adverse:
- depends on the circumstances of a particular case; and
- should be judged from the point of view of a reasonable person in the employee's position considering all the circumstances.
(Burlington N. & Santa Fe Ry. Co., 548 U.S. 53 (2006).)
A transfer may be an adverse employment action where it constitutes a constructive discharge. In order to be a constructive discharge, the working conditions must be objectively intolerable to a reasonable person. (Policastro v. NW. Airlines, Inc. 297 F.3d 535 (6th Cir. 2002).)
These cases collectively indicate that an employee's transfer may constitute a materially adverse employment action even if there is no demotion or pay decrease, "if the particular circumstances give rise to some level of objective intolerability."
In Burlington, the Supreme Court, in deciding whether the employee had suffered a materially adverse employment action, relied on the considerable evidence that the new position was "more arduous and dirtier." (548 U.S. 53 (2006).)
Record evidence suggests that Deleon's working environment was objectively intolerable because evidence suggested that:
- Deleon was exposed to toxic fumes each day;
- Deleon had to wipe soot out of his office every week;
- Deleon suffered from bronchitis, sinus headaches and soot in his nostrils;
- Deleon's previous position never exposed him to the level of hazard presented by the new position; and
- another employee likened Deleon's working conditions to "sticking your head in an exhaust pipe" or sitting "behind a city bus."

The Sixth Circuit majority held, as a matter of first impression in the circuit, that Deleon's application for the position nine months before the involuntary transfer did not preclude finding the transfer to be an adverse employment action. Other US courts of appeals have held that a request for a transfer, and accession to a new position, does not preclude a court from finding an adverse employment action. The court concluded that, under certain circumstances, a voluntary or requested transfer can constitute an adverse employment action.

Because the court focused on whether the conditions in the new position were objectively intolerable, it discounted evidence suggesting that Deleon did not find the transfer an adverse employment action, including that Deleon:

Did not:
- pull his request for the transfer;
- complain about the transfer at the time he was transferred; and
- say he disliked the job.
Felt that the new position offered better potential for career advancement than his original position.

The majority, however, considered Deleon's subjective assertion that he would have demanded $10,000 in additional pay for the new job if his transfer application were accepted among the facts suggesting that the position was objectively intolerable.

Judge Sutton dissented, concluding that when an employee such as Deleon voluntarily applies for and gets a job transfer, his employer has not subjected him to an adverse employment action. The judge found, among other things, Deleon applied for the position with full knowledge of its downsides (exposure to diesel fumes and loud noise).

Practical Implications

Employers in the Sixth Circuit (Kentucky, Michigan, Ohio, Tennessee) should be aware that any involuntary lateral transfer of an employee, even to a position for which the employee had previously applied, may constitute an adverse employment action sufficient to give rise to a claim of discrimination. Employees need not demonstrate that they suffered any reduction in salary, benefits or hours with the involuntary transfer. Instead, courts will determine, based on the specific circumstances of each case, whether the position is objectively intolerable to a reasonable person in the employee's position.

The employer in this case may petition for and be granted en banc or panel review in the Sixth Circuit, especially since the circuit's judges were split on an issue of first impression in their circuit. If the decision stands, however, it sets precedent that will be troubling for employers. Under this decision, it appears that the Sixth Circuit would allow plaintiff employees to use bald claims that they would have requested pay increases if transferred to new positions to support claims that the involuntary transfer to that position was an adverse employment action, even where the plaintiffs suffered no losses in title, pay, benefits or responsibilities.

Update

On January 12, 2015, the US Supreme Court denied certiorari in Kalamazoo County Road Commission v. Deleon, over a strident dissent by Justice Alito ( (U.S. January 12, 2015)). The Supreme Court's ruling means that the decision of the Sixth Circuit stands, and that an involuntary lateral transfer of an employee may constitute an adverse employment action sufficient to give rise to a claim of discrimination.

Transfer to Applied-for Position was Adverse Employment Action under Title VII and ADEA: Sixth Circuit | Practical Law