by Michael D. Hornback
On January 14, 2014, the U.S. Court of Appeals for the Sixth Circuit reversed a grant of summary judgment in favor of the employer, finding that a jury should determine whether the lateral transfer of an employee constituted an adverse employment action.
The Plaintiff, Robert Deleon, is a 53 year old Hispanic male of Mexican descent, who was employed by the Kalamazoo County Road Commission for 28 years. He alleged that throughout his employment he was subjected to a “pervasive atmosphere of racial insensitivity and derogatory comments;” however, the opinion does not give any specific examples of this alleged discriminatory conduct. In 2008, Plaintiff applied for a superintendent position in the Defendant’s equipment management division, essentially working in a garage around the Defendants transit buses and other machinery. The Plaintiff testified that had he been offered the position he would have demanded additional compensation because of the dirty and loud working conditions. However, Plaintiff was not offered that position and admitted that his computer skills, which were a qualification for the position, were insufficient.
Then in 2009, the Plaintiff was involuntarily transferred into the garage position. The Plaintiff expressed concerns about the hazards posed by the new position and requested a raise, but his request was denied. Plaintiff alleged he developed bronchitis, a cough, and sinus headaches due to exposure to diesel fumes. During his first evaluation in his new position, Plaintiff asked his supervisor why he had been involuntarily moved from a position where he was performing well to one that was more hazardous. Plaintiff alleged that the transfer was a deliberate attempt to set him up to fail.
Thereafter, Plaintiff was hospitalized for 5 days for, allegedly, a work-induced, stress-related mental breakdown. Plaintiff took 8 months leave under the FMLA, but by the time he was cleared to return to work, the Defendant had already terminated him. The Defendant maintained that the Plaintiff has exhausted all of his available leave.
Plaintiff sued, alleging (1) violation of 42 U.S.C. § 193; (2) racial discrimination; (3) national origin discrimination; and (4) age discrimination. Under all of his theories, the Plaintiff would have to establish that he suffered some adverse employment action, which has been defined as a “materially adverse change in the terms and conditions of a plaintiff’s employment.”
The District Court granted the Defendant’s motion for summary judgment, relying upon the previous precedent holding that “reassignments without changes in salary, benefits, title, or work hours usually do not constitute adverse employment actions.” However, the Sixth Circuit reversed. On appeal, the issues where (i) whether the conditions were sufficiently intolerable to maintain actionable discrimination claims; and (ii) whether the fact that Plaintiff applied for the position to which he was eventually transferred disqualifies him from showing that the employment action was truly “adverse.”
Plaintiff’s Discrimination Claims Must Go To The Jury.
The Sixth Circuit noted that a reassignment, even without salary or work hour changes, may be an adverse employment action if it constitutes a demotion evidenced by a “less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices that might be unique to a particular situation.” A transfer may also be considered an adverse employment action where it constitutes a constructive discharge, wherein the working conditions “must be objectively intolerable to a reasonable person.” Additionally, if the new position rises to a level of objective intolerability, the transfer can be an adverse employment action.
The Sixth Circuit determined that the Plaintiff had been his threshold with regard to the level of intolerability, testifying that he was exposed to toxic and hazardous diesel fumes on a daily basis and that he developed medical conditions as a result of his working conditions. The working environment in the garage was corroborated by another employee. The Sixth Circuit concluded that the testimony “presents sufficient indication that the Plaintiff’s work environment was objectively intolerable and there was therefore a question for the jury as to whether Plaintiff’s transfer was an adverse employment action.
Plaintiff’s Previous Application For The Position Was Of No Consequence.
The Defendant argued that no adverse employment action occurred as the Plaintiff was transferred to a position for which he applied and wanted. The Court was not convinced. While a case of first impression in the Sixth Circuit, it cited several cases from other jurisdictions for the proposition that the request of a transfer an accession to the new position, does not categorically bar a finding of an adverse employment action. “Accordingly we conclude that under certain circumstances, a voluntary or requested transfer may still give rise to an adverse employment action.”
The Sixth Circuit relied upon the fact that the Plaintiff would have only accepted the position, should he had been offered it, by demanding a substantial raise, thus indicating he only wanted the position if he would be paid more. Additionally, after Plaintiff was involuntarily transferred into the position, he complained that he did not like his new job and he asked his supervisor why he was transferred from his previous position, where he was performing well. The Court concluded that these facts supported Plaintiff’s argument that he was “set up to fail.”
The Sixth Circuit cautioned that the key inquiry is not whether the transfer was requested or not requested; rather, the focus is whether the “conditions of the transfer” would have been “objectively intolerable to a reasonable person.”
Deleon et al. v. Kalamazoo County Road Commission, 2014 WL 114016 (6th Cir. 2014).