In Deleon v. Kalamazoo Cnty. Road Comm’n, a split Sixth Circuit panel concluded that the district court improperly granted the employer summary judgment on the plaintiff’s discrimination claims despite the fact that the alleged adverse employment action was a transfer that the plaintiff had actively sought only nine months earlier.
Robert Deleon (“Deleon”), a 53-year-old Hispanic male of Mexican descent was employed with the Kalamazoo County Road Commission (“Commission”) for 28 years. Deleon was an “Area Superintendent” and had generally received positive reviews. When an “Equipment and Facilities Superintendent” position opened up in November 2008, Deleon applied. The working conditions were described as, “primarily in office and in garage where there is exposure to loud noises and diesel fumes.” Deleon applied for the position, believing it possessed the potential for career advancement. He also demanded a $10,000 salary increase if offered the job because of the “hazard posed by diesel fumes and poor ventilation in the equipment and facilities area.”
The Commission chose another candidate for the position, but the employee left shortly thereafter. The Commission then attempted to hire an external candidate, but that candidate declined the offer. Within nine months of being denied his application for the position, Deleon was transferred involuntarily to the position, without receiving the requested salary increase. Deleon voiced numerous objections to the hazards posed by the new position. Deleon also suffered with a number of medical conditions, including bronchitis, a cough, and sinus headaches due to the diesel fumes, which he attributed to his working conditions in the new position.
During his first performance review in the position, Deleon was told he was not performing sufficiently above minimum satisfactory levels, especially in technology. Deleon expressed frustration and again asked why he had been involuntarily moved from a position where he was performing well to a more hazardous position. Deleon was told he had no choice but to accept the transfer. Four days after a tense meeting with his supervisor, Deleon was hospitalized for five days. He was diagnosed with a work-induced, stress-related mental breakdown, for which he received eight months of leave. When he attempted to return to work, he was informed he had been terminated for exhausting all of his available leave.
Deleon Files Suit
Deleon brought claims of race, national origin, and age discrimination, as well as a §1983 action. All of the claims required Deleon demonstrate he suffered an adverse employment action. The court in White v. Burlington N. & Santa Fe Ry. Co., defined an adverse action as a “materially adverse change in the terms and conditions of a plaintiff’s employment”, not a “mere inconvenience or an alteration of job responsibilities.” Similar to the facts in Burlington Northern, Deleon’s transfer did not involve a change in salary, benefits, title or work hours. Notwithstanding, the Sixth Circuit recognized the job transfer may classify as an adverse employment action where it constitutes a “constructive discharge”, wherein the working conditions are found to be objectively intolerable to a reasonable person.
Deleon argued he had been exposed to toxic and hazardous diesel fumes on a daily basis, his office was covered in soot, he contracted bronchitis, suffered from frequent sinus headaches, and blew soot out of his nose. The working conditions were corroborated by another employee. The Court held that Deleon had demonstrated the working conditions were objectively intolerable at the summary judgment stage, establishing a material issue of fact.
Although the Sixth Circuit had not previously addressed whether an action can be truly ‘adverse’ if coveted by its actor, it concluded that under certain circumstances, “a voluntary or requested transfer may still give rise to an adverse employment action.” Deleon had applied for the position with the intention of commanding a substantial raise and believed the position was better for career advancement. Further, although Deleon did not withdraw his request or complain at the time he received the transfer, he did have a pointed conversation with his supervisors about the job transfer and the hazards.
Judge Sutton’s dissent focuses on the ability to successfully bring a claim under Title VII or the ADEA when an employee gets what he/she has requested. Judge Sutton argues Deleon’s actions support the belief that he got exactly what he wanted. He applied for the position, complained when he was not initially chosen, did not withdraw his application even after learning he would not receive the increased compensation or an additional employee, and again complained when the Commission extended the job offer to the external candidate. In essence, the Commission gave Deleon exactly what he wanted; thereby foreclosing his ability to premise a claim of retaliation on the job transfer.
Judge Sutton goes on to say, “[a]n interpretation of the retaliation laws that subjects employers to liability coming and going—whether after granting employee requests or denying them—will do more to breed confusion about the law than to advance the goals of a fair and respectful workplace.”
After Deleon, in the Sixth Circuit, an employee’s prior request for transfer to a position will not be a complete defense to a discrimination claim raised following a subsequent involuntary transfer to the same position. Here, the plaintiff’s request for a salary increase for his willingness to transfer should have provided the employer a clue that he might resist transfer to the position later without that increase.