Wednesday, January 15, 2014

You can’t always get what you want … but even when you do it’s an “adverse employment action”

Suppose an employee applies for a transfer to an open position. The company decides to hire an external candidate and passes on transferring the employee. Yet, when the same position again becomes vacant nine months later, the company involuntarily transfers that same employee into the position. Is the transfer to the very same position (with the same pay, benefits, prestige, and responsibility), for which, just nine months earlier, that employee had applied, an “adverse employment action” sufficient to support a claim of discrimination?

Amazingly, in Deleon v. City of Kalamazoo (1/14/14) [pdf], the 6th Circuit answered, “Yes.”

[A]n 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…. [W]e conclude that Deleon has met his threshold at the summary judgment stage…. Deleon provided evidence that he was exposed to toxic and hazardous diesel fumes on a daily basis. He testified further that he had to wipe soot out of his office on a weekly basis. As a result, Deleon claims that he contracted bronchitis, had frequent sinus headaches, and would occasionally blow black soot out of his nostrils….

We emphasize 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.”

There is so much wrong with this opinion that I don’t know where to start. Perhaps the best place is Judge Sutton’s scathing, common-sense dissent, which ends thusly (as will today’s post):

Whatever the correct interpretation of the employment retaliation laws may be, they surely stop at this line: imposing liability on employers whether they grant or deny an employee’s request for a transfer…. An 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. Even after plumbing the depths of logic, experience, case law and common sense, I must return to this surface point: When an employee voluntarily applies for, and obtains, a job transfer, his employer has not subjected him to an adverse employment action.