Employment discrimination lawsuits are filed because something bad happened to an employee that the employee did not want. Usually it’s a termination, a demotion, or discipline. Sometimes it’s harassment. Other times a refusal or failure to hire or promote. It’s always something adverse. That’s why they are called “adverse employment actions”.
So, what happens in an employee applies for a transfer to a new position within the organization He thinks it will be better for his career. Someone else gets the job, but that person doesn’t work out. Employee gets another opportunity and is moved into the new position. Unfortunately, the employee is not well suited for job, and ultimately gets terminated. Now he claims the employer discriminated against him by transferring him to the new position. He can’t sue can he? He asked for the transfer.
A recent ruling from the Sixth Circuit seems to stand the whole idea of “adverse employment action” on its head. In Deleon v. Kalamazoo County Road Commission (6th Circuit, January 14, 2014) the Court held a lateral transfer from one department to another qualifies as an adverse employment action, even though the Plaintiff had applied for the job nine months previously.
The Plaintiff, a 53 year old Hispanic male of Mexican descent, was employed by the Kalamazoo County Road Commission. For 13 years he served as an area superintendent, which involved supervising road maintenance activities, road crews, and overseeing repairs.
In 2008, a vacancy arose for the position of Equipment and Facilities Superintendent. Plaintiff applied for the position because he anticipated it would result in a pay increase and would be better for his career and advancement. He was not offered the job, primarily because of his deficient computer skills. But, the person who took the job left shortly thereafter, and an external candidate offered the position declined it. Thus, nine months after Plaintiff had applied, the job was again open, and he was transferred there.
Unfortunately for Plaintiff, the deficient computer skills that kept him from getting the job in the first place proved to be his undoing. Plaintiff’s first evaluation in the new position rated him acceptable in most critical areas but he was deficient in technology. He complained that he was unhappy with his new position. He did not like the fact that the working condition exposed him to loud noises and diesel fumes. Plaintiff inquired why he had been involuntarily moved from a position where he was performing well to one that was more hazardous. Plaintiff was later hospitalized for what he attributed to work induced stress and eventual mental breakdown. He took eight months of leave under FMLA because of his mental breakdown. By the time he was released to return to work, his employment had been terminated. Plaintiff alleged the transfer was a deliberate attempt to set him up to fail because of his race, national origin, and age.
The trial Court granted Defendant’s Motion for Summary Judgment on the basis that Plaintiff did not suffer an adverse employment action. The Court of Appeals reversed, but with one judge dissenting. In evaluating whether the transfer was an adverse employment action, the majority discounted the fact that Plaintiff had previously sought the job, concluding that the conditions at the time the transfer actually occurred made it involuntary. The majority pointed to the fact that Plaintiff did not receive the raise he expected, and was not satisfied with the more hazardous working conditions. The test, according to the majority, was not whether the employee requested or did not request the transfer, but whether the conditions of the transfer would have been objectively intolerable to a reasonable person.
The dissenting judge disagreed that Plaintiff’s transfer could be considered an involuntary one. According to the dissent, giving an employee what he wanted, and in what he persisted in seeking when at first he did not succeed, cannot an adverse employment action.
Unfortunately, rulings like this one contribute to employer cynicism about the employment discrimination laws and tend to undermine what the law seeks to accomplish. The dissent pointed out this perverse result, noting that an interpretation of the law “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.”