Can a job transfer originally requested by an employee constitute an “adverse employment action” (for purposes of Title VII, the ADEA and § 1983)? The Sixth Circuit panel in this case split over the issue, 2-1. The panel majority holds, in reversing summary judgment on this issue, that such a transfer may be “adverse” to the employee when the terms and conditions of the transfer are inferior to what the employee originally sought.
Deleon v. Kalamazoo Cnty. Road Comm’n, No. 12-2377 (6th Cir. Jan. 14, 2014): On November 13, 2008, plaintiff Deleon applied for the position of “Equipment and Facilities Superintendent.” He testified that, had he been offered the job, he would have asked for a $10,000 raise to compensate for the poor working conditions, described as “in garage where There is exposure to loud noises and diesel fumes.” The commission first hired another candidate, who – shortly Thereafter – quit. An external candidate was then offered the job, who declined.
In 2009, Deleon was transferred to the position without a raise. He was offered no choice in the matter. The plaintiff moved from an office environment to a “facility with running trucks and equipment that resulted in constant exposure to diesel fumes.” He testified that this was the only Area Superintendent position subject to these conditions. “He asserted that he developed bronchitis- as well as a cough and sinus headaches – from the diesel fumes.”
While the district court held that such circumstances belied an “adverse” employment action, the Sixth Circuit reverses. The panel majority observes that while lateral transfers that do not affect pay, title or work hours are often not deemed “adverse,” a transfer without such tangible 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 There indices that might be unique to a particular situation.” White v. Burlington N. & Santa Fe Ry. Co., 364 F.3d 789, 795 (6th Cir. 2004), aff’d sub nom. Burlington N. & Santa Fe Ry. Co., 548 U.S. 53 (2006).
Here, the record revealed a genuine dispute of material fact about whether the transfer was “objective intolerability.” There was evidence that he was exposed to toxic and hazardous diesel fumes on a daily basis, that he had to wipe soot out of his office on a weekly basis, and that he contracted bronchitis. Another employee compared the workplace environment to “sticking your head in an exhaust pipe” and sitting “behind a city bus.”
The panel majority also holds that Deleon’s prior application for the same position did not necessarily mitigate a finding of “objective intolerability”:
“The record reflects that Deleon applied for the position with the intention of commanding a substantial raise and under the impression that employment benefits would inure to the benefit of his career. Such a request for ‘hazard pay,’ which was never provided, tilts the issue as to whether Deleon really requested or wanted the position in his favor. Nor are we persuaded by the fact that Deleon technically never withdrew his request, and did not complain at the time he received the transfer.”
Although Deleon never complained specifically about the job assignment, that did not render it voluntary or non-discriminatory. Because the standard is objective, “an employee’s opinion of the transfer, whether positive or negative, has no dispositive bearing on an employment actions classification as ‘adverse.'”
In dissent, Judge Sutton declares that “[t]he Commission’s decision to give Deleon what he wanted, what he persisted in seeking when at first he did not succeed, did not amount to an adverse employment action, much less a retaliatory one. Deleon voluntarily applied for the job with full knowledge of its pros and cons, making it difficult to fathom how he could premise a claim of retaliation on the transfer alone.”
(One oddity in the opinion is that the majority panel treats Deleon’s complaint as one of race, age and national origin discrimination, while the dissent treats it as a retaliation claim. Neither opinion acknowledges the There in this respect. The majority, it turns out, is correct – 09913172491.pdf.)