Not long ago, the Sixth Circuit Court of Appeals determined in Deleon v. Kalamazoo County Road Commission that a job transfer could be considered an adverse employment action, even if it was to a position that the employee initially wanted.
The case involved a 53-year old man of Mexican descent, Robert Deleon, who had worked for the Kalamazoo County Road Commission for 28 years. In 1995, Deleon served as an Area Superintendent who supervised road maintenance activities, road crews, and road repairs. Although he received positive reviews for his work, Deleon also claimed to have experienced a pervasive atmosphere of racial insensitivity and hostility.
In 2008, a vacancy opened up for the Equipment and Facilities Superintendent position. The description stated that the work took place primarily in an office and in a garage where there would be exposure to loud noises and diesel fumes. Deleon applied for the position, viewing it as a good opportunity to advance in his career. Had he been offered the position, Deleon claimed that he would have requested a $10,000 increase in salary.
Eventually, Deleon learned that he did not receive the position, and that his insufficient computer skills, a major requirement, were the reason. The person who was hired, however, left the position shortly thereafter, and an external candidate declined the offer. Deleon was then transferred to that position involuntarily in 2009 as part of a larger reorganization.
At the time, Deleon objected because the position contained several hazards, including the continued exposure to diesel fumes. He claimed that he wanted a $10,000 as compensation for those hazards. Deleon later developed bronchitis, as well as sinus problems that left him blowing black soot from his nostrils as a result. His first performance evaluation was deemed to be acceptable in most areas but insufficiently above minimum satisfactory levels in all areas. Deleon claimed that the transfer was a deliberate attempt to set him up to fail. He eventually suffered a breakdown that required five days’ hospitalization, followed by eight months of leave under the Family and Medical Leave Act (FMLA). His employer later terminated him, claiming that Deleon went beyond the leave allotted by the FMLA. Deleon eventually filed a lawsuit, claiming a violation of the Fourteenth Amendment Equal Protection Clause, racial and national origin discrimination in violation of Title VII of the Civil Rights Act of 1964, and age discrimination in violation of the Age Discrimination in Employment Act (ADEA).
The district court disagreed with Deleon’s contentions and issued a summary judgment decision in favor of Deleon’s employer. Deleon then appealed to the Sixth Circuit. The Sixth Circuit noted that generally, when an employee is reassigned without changes in salary, title, or benefits, it usually does not constitute an adverse employment action. The exception is if the transfer could be considered a constructive discharge. A constructive discharge required that the position be intolerable to any reasonable person. In fact, a transfer could be considered materially adverse employment even in the absence of a demotion or a pay decrease, as long as the circumstances were objectively intolerable. Deleon had demonstrated that the position was intolerable, and it did not matter that he had initially applied for it and the job description mentioned it as a hazard. The Sixth Circuit therefore reversed the district court’s summary judgment ruling.
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