US Supreme Court will Not Review Decision that Job Transfer Can Be an Adverse Employment Action

On Monday, January 12, 2015, the United States Supreme Court declined to review Kalamazoo County Rd. Commission, et al. v. Robert Deleon, et. ux. (No. 13-1516), where the Sixth Circuit previously held that a job transfer can amount to an adverse employment action, even where the employee previously applied for such transfer.

Robert Deleon was employed by the Kalamazoo County Road Commission (“Commission”) for twenty-eight years, where he had served as an Area Superintendent since 1995. In 2008, Deleon applied for an Equipment and Facilities Superintendent opening. This new position would require the applicant to work in a garage with exposure to diesel fumes. Initially, the Commission hired another candidate who subsequently left. Thereafter, the Commission offered the position to an external candidate who later declined.

Deleon was ultimately involuntarily transferred to the position in 2009. At that time, Deleon asserted that the transfer was an attempt to set him up to fail. He also raised several concerns regarding the job hazards and testified that he would have demanded a raise because of the “hazard posed by diesel fumes and poor ventilation in the equipment and facilities area.” Deleon did not, however, receive the raise he requested when involuntary transferred.

Ultimately, the Sixth Circuit determined that Deleon’s initial request to transfer did not preclude a finding that he suffered an adverse employment action in support of his discrimination claims. The Sixth Circuit explained 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.' ” (internal citations omitted).