January 20, 2014
Last week in Deleon v. Kalamazoo County Road Commission, No. 12-2377, the Sixth Circuit Court of Appeals addressed the question of whether an “adverse” employment action exists if an employee is transferred to a position he applied and interviewed for. In this case, Deleon, a fifty-three year old Hispanic male was employed by the Kalamazoo County Road Commission (“the Commission”) for twenty eight years and beginning in 1996 served as an “Area Superintendent.” In 2008, a vacancy arose for the position of “Equipment and Facilities Superintendent.” The job description described the working conditions as “primarily in office [ ] and in garage where there is exposure to loud noises and diesel fumes.” Delion applied for this position and in his application indicated he wanted a raise.
After an interview, the Employer informed Deleon that he did not receive the position. However, the candidate who accepted the position left shortly after being hired. In 2009, Deleon was involuntarily transferred to the position as a result of a larger “reorganization.” Deleon voiced his objection to the hazards posed by the new position and demanded a raise due to the “hazard posed by diesel fumes and poor ventilation.” Deleon alleged that he developed bronchitis and other ancillary health problems as a result of the fumes.
Deleon’s performance in his new position was acceptable in most areas, but overall he was not performing as well as he had been in his prior position. Deleon asserted that the transfer was an attempt to set him up to fail. After a fractious meeting with Deleon’s supervisor, he ended up being hospitalized for five days. Deleon attributed the hospitalization as a work-induced, stress-related, mental breakdown and, subsequently, took eight months’ leave under the FMLA. By the time Deleon was cleared to return to work, he had exhausted all available leave and had been terminated.
Deleon sued, alleging that he was terminated for various discriminatory reasons (i.e. national origin, race, and age). Each cause of action required Deleon to show that he suffered an “adverse” employment action. The general rule is that a transfer that does not change salary, benefits, title, or work hours does not constitute adverse employment action. In reversing the trial court, the Appellate Court held that without such tangible changes an “employee’s transfer may constitute a materially adverse employment action, even in the absence of a demotion or pay decrease, so long as the particular circumstances present give rise to some level of objective intolerability.”
The Appellate Court held that in this case there was a genuine dispute of material fact about whether the transfer was objectively intolerable. Furthermore, the Court addressed whether a truly adverse action had taken place when the employee had previously applied for the same position. The Court emphasized, “that the key focus of the inquiry should not be whether the lateral transfer was requested or not requested, or whether the aggrieved plaintiff must ex tempore voice dissatisfaction, but whether the ‘conditions of the transfer’ would have been ‘objectively intolerable to a reasonable person.’” As a result, the Court held that denying Deleon the ability to pursue his claims on the grounds that, as a matter of law, his initial request to obtain the position precludes him from a finding that he suffered a materially adverse employment action would be improper. Accordingly, the Court reversed the District Court and remanded the case for further proceedings.
The dissenting opinion authored by Judge Sutton, makes two notably points: (1) that no prior case law exists that holds that “granting a sought-after transfer by itself amounts to an adverse employment action” and (2) the resulting impact of the majority ruling opinion “subjects employers to liability coming and going – whether after granting employee requests or denying them….”
For now, in light of the majority decision in Deleon v. Kalamazoo County Road Commission, employers should consider potential civil liability even when making lateral transfers. Employers should take extra precautions during any employee transfer to buttress the employer’s position in the event that litigation arises from such action. For more information on properly performing job transfers or other human resource needs please contact Andrew A. Esposito or Brian D. Butcher toll free at (800) 282-0787.