Sixth Circuit Holds That Voluntary Job Transfer Can Be an Adverse Employment Action

On January 14, 2014, the Sixth Circuit Court of Appeals (Ohio, Michigan, Kentucky, Tennessee) ruled that transferring an employee to another position constituted an adverse employment action, despite the fact that the employee requested the transfer. In doing so, the Sixth Circuit reversed the District Court’s decision that granted summary judgment to the defendant on the plaintiff’s race, national origin, and age discrimination claims. 

In Deleon v. Kalamazoo County Road Commission, the facts indicated the plaintiff applied for a job transfer to an Equipment and Facilities Superintendent position in November 2008 because he viewed the new position would provide better potential for career advancement. The posting for the open position described the working conditions as “primarily in the office and in garage where there is exposure to loud noises and diesel fumes.” The plaintiff did not receive the position, but the individual who did left the position shortly thereafter. When he did not originally receive the job transfer, the plaintiff complained to his supervisors about not getting the job. In 2009, the plaintiff was transferred to the Equipment and Facilities Superintendent position.  Shortly after his transfer, he began to complain about the diesel fumes and alleges suffered from bronchitis and sinus headaches. 

The plaintiff then had a contentious meeting with his supervisor that involved a disagreement on the redesign of a truck. Four days after this meeting, the plaintiff was hospitalized for five days, which he attributed to work-induced stress and a stress-related mental breakdown. The plaintiff then took eight month’s leave under FMLA. When he was cleared to return to work by his psychiatrist, the plaintiff learned he had been terminated for exhausting all his leave. He then filed charges for race, national origin, and age discrimination. He asserted the job transfer was an adverse employment action and he was set up to fail. The District Court disagreed and granted the defendant summary judgment because it determined that transferring an employee to a position the employee applied for was not an adverse action.
The Sixth Circuit began its analysis by noting that generally reassignments without changes in salary, benefits, or title usually do not constitute an adverse employment action. The Sixth Circuit noted, however, that a job transfer may qualify as an adverse employment action where it constitutes a constructive discharge. In order for an employee to be constructively discharged, the working conditions must be objectively intolerable to a reasonable person. The Sixth Circuit took it a step further and determined that a job “transfer may constitute a materially adverse employment, 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.” 

The Sixth Circuit determined that the plaintiff demonstrated his working conditions were objectively intolerable. For support the Sixth Circuit, cited to the diesel fumes plaintiff was exposed to in his new position. The Sixth Circuit disregarded, or gave little credence, to the fact that the job posting for this position specifically stated diesel fumes were present and plaintiff was aware of the presence of diesel fumes when he voluntarily applied for the position. The Sixth Circuit addressed the fact that plaintiff applied for the job transfer but stated, “Accordingly, we conclude that under certain circumstances, a voluntary or requested transfer may still give rise to an adverse employment action.”

Judge Sutton’s dissent points out the untenable position employers are now placed in: “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.” As Judge Sutton suggests, the majority’s decision sets up a proverbial Catch-22 situation for employers. In this case, the employee got exactly what he wanted, a job transfer; yet, the majority determined he still had a cognizable claim. According to Judge Sutton, “It follows under the majority’s analysis that, when the employer denies what the employee wants, he also has a cognizable claim.” 

The Sixth Circuit’s decision leaves employers in the unenviable position of potentially facing liability when they refuse to transfer an employee to a position for which they applied, or when they actually do transfer an employee to a position for which they applied.  

Contact: Jon Secrest

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