Alan Schorr’s Employment Case of The Week ending January 17, 2014

Deleon v. Kalamazoo County Rd. Commission, 2014 U.S. App. LEXIS 681 6th Cir. (January 14, 2014)

If an employee is transferred into a job that he actually applied for, can the transfer be an unlawful act of discrimination or retaliation? The Sixth Circuit Court of Appeals answered in the affirmative in the opinion of Deleon v. Kalamazoo County Rd. Commission. In this case, the Court of Appeals held that, under the right circumstances, a lateral transfer into a position that the plaintiff had actually sought can constitute an “adverse employment action” under Federal anti-discrimination laws.

Robert Deleon was a 53 year old Hispanic male of Mexican descent. He worked for the Kalamazoo County Road Commission for 28 years. Throughout most of his tenure, he was an “area superintendent” and received generally positive performance reviews. In 2008, Deleon applied for a vacant position of “Equipment and Facilities Superintendent”, which was described as “primarily in office and in garage where there is exposure to loud noises and diesel fumes.” Deleon attested that if he had been offered the position, he would have demanded a $10,000 per year raise. He also viewed the position as possessing better potential for advancement. In 2009, he was involuntarily transferred into the position without any raise.

The job was miserable. Others described it as “like sticking your head in an exhaust pipe”. Deleon developed bronchitis as well as sinus headaches due to the diesel fumes, and would blow black soot from his nostrils as a result. No other area supervisor was required to work under such conditions. Shortly thereafter Deleon was hospitalized due to “work-induced, stress-related mental breakdown,” after which he took eight months’ leave under the FMLA. When Deleon was ready to return, he was told he had been replaced and was terminated.

Deleon filed suit under the Equal Protection Clause of the Fourteenth Amendment, race and national origin discrimination under Title VII, and age discrimination under the ADEA. The District Court, after discovery, granted summary judgment on all counts, finding that Deleon could not establish an “adverse employment action”. The Court found that the involuntarily transfer into a position that was “more arduous and dirtier” could form the basis for a jury to find that the involuntary transfer was adverse. They then addressed Deleon’s prior applications requesting this position. The Defendant argued that a transfer cannot be “adverse” if coveted by its actor.

The Court found that, even though Deleon never withdrew his request for the job, even after having been told he would not get a raise, and even though he did not complain at the time of the transfer, he did testify that he approached his supervisors and them “why they took me out of a job [where] I was doing a good job and put me in a more hazardous job. The 6th Circuit concluded:

This supports Deleon’s argument that he was “set up to fail.” We are leery of a holding that would require that an involuntarily transferred employee, alleging a discriminatory work environment, must demand a transfer from the very superiors engaging in the discrimination.

Finding this to be an issue of first impression, the 6th Circuit reversed and remanded.

There was a dissent, in which the dissenting judge could not understand how this could possibly be adverse action given that Deleon wanted the job, and left his application, which expressly requested a raise, in for the job, even after being told that he would not a raise if he took the job. He noted that Deleon complained when the job had been given to an external candidate. When that hire quit the job for personal reasons and a second external candidate turned the job down, it was given to Deleon. The dissent did not believe that such circumstances should constitute an adverse employment action.

The unusual facts of this case are not likely to create any precedents. It is likely that the Court saw Mr. Deleon as a 28 year employee with good performance reviews who suddenly was transferred into a position that he could not handle, made him sick, and was then summarily terminated when he failed and became ill. The Court obviously felt that such an employee, terminated after such unfair treatment, should at least have his day in Court. With their decision, he will now have that opportunity.

Plaintiff’s counsel: Lennox Emanuel, The National Law Group, P.C.

Defendant’s counsel: Thomas H. Derderian, Michael R. Kluck & Assoc.

U.S. District Court Judge: Paul Lewis Mahoney, U.S.D.J., U.S. District Court for the Western District of Michigan at Grand Rapids.

Circuit Judges: Damon J. Keith, on the majority opinion; Timothy S. Black, District Judge (on assignment); Jeffrey S. Sutton, on the dissent.